Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA080646. William Barry, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Theodore Millender, Jr., appeals from the judgment entered following a jury trial that resulted in his conviction of possession of a firearm by a felon, evading an officer, three counts of assault with a firearm upon a custodial officer, and shooting at an occupied motor vehicle. He contends: (1) the evidence was insufficient to support the three convictions for assault upon a custodial officer; and (2) there were various sentencing errors. We reverse the judgment on the three convictions for assault with a firearm on a custodial officer, and remand to the trial court for consideration of two lesser included offenses and for sentencing. In all other respects, we affirm.
One of these sentencing errors, insufficient evidence to support an enhancement pursuant to Penal Code section 667.5, subdivision (b), is conceded by the People.
FACTS
A. People’s Case
Viewed in accordance with the usual rules on appeal (People v. Rundle (2008) 43 Cal.4th 76, 137 (Rundle)), the evidence established that at about midnight on August 13, 2005, uniformed Deputy Sheriffs Frederick Morse, Jason Bates, and Sergeant Laurence Knott, all from the Los Angeles County Sheriff’s Department, were on patrol in a marked car when, moments after hearing gunshots, they saw two cars apparently engaged in a high speed chase. The officers activated the lights and siren of their patrol car and commenced pursuit of the second car. The driver of that car, defendant, ignored the lights and siren and continued driving at a high speed and violating various traffic laws; while doing so, he pointed a gun at the pursuing officers and fired repeatedly. Morse fired back. Eventually, defendant stopped the car, jumped out and said, “I don’t have the gun. Don’t shoot me,” and “I didn’t shoot anybody, did I, don’t shoot.” Defendant then ran away and Bates gave chase on foot. When defendant turned and raised his gun to fire at Bates, Bates fired at defendant. Several hours later, defendant was arrested when a police dog found him hiding nearby. Meanwhile, the passenger who had been in defendant’s car during the pursuit was arrested without incident.
When a detective later attempted to perform a gunshot residue test on defendant’s hands, defendant kept his fists clenched so that the detective was only able to swab the outside of defendant’s hands. The swab tested positive for gunshot residue.
Defendant stipulated that he had suffered a prior felony conviction.
B. Defense Case
The passenger in defendant’s car that night, Alvin Jenkins, testified that he was a lifelong friend of defendant’s. Jenkins admitted that defendant led the police on a high speed chase, but maintained that neither he nor appellant had a gun that night. When defendant ran away from the car, Jenkins attempted to distract the officers by falsely yelling, “I’m shot.” In a post-arrest interview, Jenkins denied knowing defendant.
Claudia Romero was at home when she heard gunshots. She saw the end of the car chase and videotaped part of the foot chase. She would not talk to the police at the time and gave the video to defendant’s family. Romero maintained that defendant was not holding a gun.
PROCEDURAL BACKGROUND
Defendant was charged by information filed November 28, 2005, with attempted murder of a peace officer (Pen. Code, §§ 664, 187, subd. (a); counts 1, 2 & 3); possession of a firearm by a felon (§ 12021, subd. (a)(1); count 4); and evading a peace officer with willful disregard (§ 2800.2, subd. (a); count 5). Enhancements for gun use and prior convictions were also alleged. On August 30, 2006, the information was amended by interlineations with the addition of three counts of “assault (ADW/GBI) upon a custodial officer” (§ 245.3; counts 6, 7 & 8), and shooting at an occupied motor vehicle (§ 246; count 9). (Italics added & capitalization omitted.)
All undesignated statutory references are to the Penal Code.
The evidentiary portion of defendant’s jury trial commenced on September 6, 2006. The jury was instructed on September 12, 2006. Although counts 6, 7, and 8 charged defendant with felony assault upon a custodial officer in violation of section 245.3, the jury was not given CALCRIM No. 862, which instructs on the elements of this offense. Instead, the trial court gave CALCRIM No. 860, which instructed on the elements of felony assault with a firearm upon a peace officer in violation of section 245, subdivision (d)(1). Accordingly, although defendant was not charged with violation of section 245, subdivision (d)(1), the jury was instructed that, to prove defendant was guilty of the crimes charged in counts 6, 7, and 8, the People were required to prove that defendant “did an act with a firearm that by its nature would directly and probably result in the application of force to a person” and that “[w]hen the defendant acted, the person assaulted was lawfully performing his duties as a peace officer” and “[w]hen the defendant acted, he knew, or reasonably should have known, that the person assaulted was a peace officer who was performing his duties.” (Italics added.) In the context of the instructions on charges of attempted murder of a peace officer (counts 1, 2 & 3) and evading a peace officer (count 5), the jury was instructed that a person employed as a police officer by the Los Angeles Sheriff Department is a peace officer. Consistent with the instructions, the prosecutor referred to the charge of “assault on a peace officer” in closing argument.
CALCRIM No. 862 requires the jury to find that the defendant “willfully did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person” and that the defendant knew the victim was a custodial officer performing his or her duties.
We note that CALJIC No. 9.20 is the standard instruction for charged violations of both section 245, subdivision (d) as well as section 245.3.
Although the jury was instructed on the elements of felony assault on a peace officer with respect to counts 6, 7, and 8 (and the prosecutor referred to the charged offense in this manner), the jury verdict forms were consistent with the information and identified the charged offense as willful “assault (ADW/GBI) upon a custodial officer . . . in violation of Penal Code Section 245.3, a Felony, as charged in [counts 6, 7, and 8] of the Information.” (Italics added & capitalization omitted.) On September 13, the jury found defendant not guilty of counts 1, 2, and 3 (attempted murder of a peace officer) but guilty of felon in possession of a firearm (count 4), evading a peace officer (count 5), assault on a custodial officer (counts 6, 7 & 8) and shooting at an occupied vehicle (count 9).
On March 8, 2007, several days before the continued probation and sentencing hearing, defendant filed a motion for new trial on the grounds that the verdict was contrary to the evidence inasmuch as, although counts 6, 7, and 8 charged defendant with assault with a deadly weapon upon a custodial officer, defined by statute as “a public officer, not a peace officer” (§§ 245.3, 831, subd. (a), 831.5), there was no evidence that Deputy Sheriffs Morse, Bates or Sergeant Knott were custodial officers; on the contrary, the undisputed evidence established that Morse, Bates, and Knott were peace officers. At the sentencing hearing on March 14, 2007, the prosecutor conceded that there was no evidence to support the custodial officer element of the charged offense, pointed out that the jury had been instructed on the elements of felony assault with a firearm upon a peace officer, and suggested that the trial court treat the fact that the charge and verdict were for felony assault on a custodial officer and not felony assault on a peace officer as though “the verdict form listed the wrong date or the wrong name of the victim or wrong spelling. [¶] . . . I think the reason we’re here, is because there was a technical issue with the information, but there’s absolutely no prejudice to the defendant. In fact, he escaped” additional mandatory enhancements for use of a firearm in a felony assault on a peace officer. (See, e.g., § 12022.53, subds. (a)(7), (c) [20 years for personal discharge of a firearm in commission of felony assault on a peace officer].) In response to the trial court’s inquiry as to how defendant was prejudiced, defense counsel responded that prejudice was not an element of a claim of insufficiency of the evidence. Defense counsel also suggested that the trial court could reduce the conviction to the lesser included offense of felony assault with a firearm, which is punishable by two, three, or four years. (§ 245, subd. (a)(2); see also § 245, subd. (a)(1) [assault with a deadly weapon other than a firearm or by means like to produce great bodily injury, also punishable by two, three, or four years].)
Concluding that the error was harmless inasmuch as the jury found defendant guilty of the “charge that would have been brought but for a typographical error or stenographical error of putting 245.3, assault with a deadly weapon against a custodial officer,” the trial court denied the motion.
Defendant was sentenced to a total of 23 years 4 months in prison. He filed a timely notice of appeal.
In addition to the five-year high term on count 6, the trial court imposed the following consecutive terms: two years eight months (one-third the midterms on the substantive count and the gun-use enhancement) on count 7, two years eight months (one-third the midterms on the substantive count and the gun-use enhancement) on count 8, one year eight months (one-third the midterm) on count 9, eight months (one-third the midterm) on count 4, and eight months (one-third the midterm) on count 5, and 10 years for the count 6 gun-use enhancement.
DISCUSSION
A. The Conviction of Felony Assault on A Custodial Officer Is Not Supported By Substantial Evidence
Defendant contends the evidence did not support the convictions for violation of section 245.3 as charged in counts 6, 7, and 8 because there was no evidence that he ever assaulted a custodial officer, as opposed to a peace officer. We agree and reverse those convictions and remand for the trial court to consider the lesser included offenses of felony assault with a deadly weapon/great bodily injury in violation of section 245, subdivision (a)(1), and felony assault with a firearm in violation of section 245, subdivision (a)(2).
A criminal conviction that is not supported by substantial evidence violates the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing a challenge to the sufficiency of the evidence, “ ‘we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ [Citation.] ‘The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (Rundle, supra, 43 Cal.4th at p. 137.)
The charged offense, assault upon a custodial officer is described by section 245.3 as follows: “[Any] person who commits an assault with a deadly weapon or instrument or by any means likely to produce great bodily injury upon the person of a custodial officer as defined in Section 831 or 831.5, and who knows or reasonably should know that such victim is such a custodial officer engaged in the performance of his duties, shall be punished by imprisonment in the state prison for three, four, or five years.” (Italics added.) Sections 831 and 831.5 define custodial officer as “a public officer, not a peace officer . . . who has the authority and responsibility for maintaining custody of prisoners . . . .” (§§ 831, subd. (a), 831.5, subd. (a).)
Here, as the People concede, there was no evidence that Deputy Sheriffs Morse, Bates or Sergeant Knott were custodial officers, albeit the undisputed evidence established that all three were peace officers. Moreover, the jury was never instructed that the People were required to prove that the victims were custodial officers in order to prove a violation of section 245.3. Accordingly, the evidence was insufficient to support the convictions for violation of section 245.3.
We are not persuaded to the contrary by the People’s assertions that the absence of any evidence of the custodial officer element of the charged offense should be treated as harmless error inasmuch as (1) there was substantial evidence that defendant committed the uncharged offense of felony assault on a peace officer in violation of section 245, subdivision (d)(1); and (2) defendant benefitted by being convicted of an offense as to which there was no evidence of a material element because his sentence exposure on the uncharged offense would have been greater than was his exposure on the charged offense. The only legal authority the People cite in support of their argument is People v. Thomas (1987) 43 Cal.3d 818, 823 (Thomas). The People’s reliance on Thomas is misplaced.
Section 245.3 makes assault with a deadly weapon or by means likely to produce great bodily injury upon a custodial officer punishable by three, four, or five years.
In Thomas, the defendant was charged with: “Violation of Section 192.1 . . . committed as follows: The said defendant(s), . . . did willfully, unlawfully, and witho[ut] malice aforethought kill, Tommy Myers, a human being.” (Thomas, supra, 43 Cal.3d at p. 824, capitalization omitted.) He was convicted by a jury of involuntary manslaughter. On appeal, the defendant argued that the conviction could not stand because he was charged with voluntary manslaughter, not involuntary manslaughter, and involuntary manslaughter was not a lesser included offense of voluntary manslaughter. Our Supreme Court rejected this argument, reasoning that the allegations of the information were broad enough to charge manslaughter generally, not voluntary manslaughter specifically, and the defendant should have been on notice that he could be convicted of either form of manslaughter: voluntary or involuntary. (Id. at pp. 824-825.) It was immaterial that the charging allegation specified a violation of section 192, subdivision (1) [voluntary manslaughter] because the specific allegations of the accusatory pleading and not the statutory definitions of the charged offenses constitute the measuring unit for determining what offenses are included in a charge and even a reference to the wrong statute has been viewed to be of no consequence. (Thomas, at p. 826; see also People v. Ellis (1987) 195 Cal.App.3d 334, 339 [under Thomas, erroneous reference to a statute in pleading is of no consequence provided the pleading adequately informs the accused of the act he is charged with having committed].
As quoted by the court in Thomas, former section 192, in effect at the time the defendant in Thomas was charged, read: “ ‘Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds. . . . 1 Voluntary--upon a sudden quarrel or heat of passion. [¶] 2 Involuntary—in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle. [¶] 3 In the driving of a vehicle . . . .’ ” (Thomas, supra, 43 Cal.3d at pp. 823-824.)
The court clarified the meaning of Thomas in People v. Mancebo (2002) 27 Cal.4th 735. In that case, the defendant was convicted of various violent sex offenses committed against two victims on separate dates. The jury found true: a personal firearm-use enhancement (§ 12022.5, subd. (a) [10-year high term]) as to all counts; as to the charges involving one victim, it found true kidnapping and personal gun use special circumstances (§ 667.61, subds. (e)(1) & (4) [25 years to life]); as to the counts involving the second victim, it found true personal gun use and “tying or binding” special circumstances. (Id., subds. (e)(4) & (6)). The information did not allege, and the jury made no findings, as to any multiple victim special circumstance. (Id., subd. (e)(5).) In order to impose both the 25-year-to-life term pursuant to section 667.61, subdivision (a) and the 10-year firearm-use enhancement pursuant to section 12022.5, subdivision (a), the trial court substituted an uncharged multiple victim special circumstance for the firearm-use special circumstance. On appeal, the People argued that the failure to plead and prove the multiple victim circumstance was harmless error because the defendant was on notice that he was being charged with the facts underlying that special circumstance (crimes against two victims) and the jury found true those underlying facts (i.e., convicted him of crimes against two victims). (Mancebo, at pp. 740-741.) Our Supreme Court rejected the People’s argument that, under Thomas “ ‘[i]t is sufficient that the allegations in the pleadings placed appellant on notice that the facts underlying the multiple victim circumstance would be at issue.’ ” (Mancebo, at p. 747.) The court in Mancebo observed that Thomas held only “that inclusion of the word ‘willfully’ in the accusatory pleading did ‘not transmogrify the crime charged from manslaughter generally to voluntary manslaughter exclusively.’ [Citation.]” (Mancebo, at pp. 747-748.)
Under section 667.61, subdivision (a), in order to impose the 25-year-to-life sentence, two or more subdivision (e) special circumstances must be found true. Pursuant to section 667.61, subdivision (f), if only the minimum number of special circumstances have been pled and proved (i.e., two), that circumstance must be used to impose the section 667.61 sentence rather than being used to impose some other enhancement with a lesser penalty. Thus, the gun-use finding could not also be used as a separate enhancement since it was one of two special circumstances found true.
Here, unlike in Thomas, the charging allegations were not unclear or so general as to encompass both assault on a custodial officer and assault on a peace officer. On the contrary, the information specifically alleged that defendant “did willfully and unlawfully commit an assault with a deadly weapon, to wit, handgun, and by means likely to produce great bodily injury, upon the person of [Deputy Sheriffs Morse, Bates, and Sergeant Knott], when [defendant] knew and reasonably should have known that said person[s were] custodial officer[s], as defined in section 831 and 835 of the Penal Code, then and there in the performance of [their] duties.” It is immaterial that in the context of other charges the jury necessarily found Morse, Bates, and Knott were peace officers (count 5, evading a pursuing peace officer) and found defendant fired at the patrol car in which the three officers were riding (count 9, shooting at an occupied motor vehicle). From the fact that a jury finds true facts necessary to support a conviction of an uncharged offense, it does not follow that defendant can be found guilty of a charged offense which was not supported by substantial evidence. A conviction that is not supported by substantial evidence violates due process.
Our inquiry does not end because we must determine the appropriate remedy. Pursuant to section 1181, subdivision 6, when the verdict is contrary to the evidence but the evidence shows the defendant is guilty of a lesser included crime within the crime of which he was convicted, the appellate court may modify the verdict to a conviction of the lesser included crime. (See also § 1260 [appellate court has power to modify the judgment].)
An offense is necessarily included within another “if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Lacefield (2007) 157 Cal.App.4th 249, 256.) We take the simplest case first. Misdemeanor simple assault, which is punishable by six months in county jail (or by a fine, or both a fine and imprisonment) is defined in section 240 as the “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” It is a lesser included offense of aggravated assault. (People v. McDaniel (2008) 159 Cal.App.4th 736, 852-853 [§ 240 is lesser included offense of § 245, subd. (a)(1) and of § 4501 [assault with a deadly weapon by a prisoner] because those offenses cannot be committed without committing a simple assault.) Simple assault is a lesser included offense within felony assault upon a custodial officer because the statutory elements of the latter include all the elements of the former, such that the latter cannot be committed without also committing a simple assault. (Cf. People v. Hood (1969) 1 Cal.3d 444, 449 [simple assault is lesser included offense of assault on a peace officer]; see also People v. Mesce (1997) 52 Cal.App.4th 618, 636 (dis. opn. of Hodge, J.) [suggesting in dicta that simple assault is a lesser included offense of assault on a custodial officer].)
We next look to whether felony assault in violation of section 245, subdivision (a)(1) or (a)(2) is a lesser included offense of felony assault on a custodial officer in violation of section 245.3 under either the accusatory pleading or statutory elements tests. We conclude the allegations in the information of a violation of section 245.3 here includes all the elements of a violation of felony assault under section 245, subdivisions (a)(1) and (a)(2). Counts 6, 7, and 8 of the accusatory pleading alleged: “the crime of ASSAULT (ADW/GBI) UPON A CUSTODIAL OFFICER, in violation of PENAL CODE SECTION 245.3, a Felony, was committed by [defendant], who did willfully and unlawfully commit an assault with a deadly weapon, to wit, handgun, and by means likely to produce great bodily injury, upon the person of [Deputy Sheriffs Bates, Morse, and Sergeant Knott] when said defendant(s) . . . .” Thus, the accusatory pleading for the charged crime alleged all the elements of a violation of section 245, subdivision (a)(1) [assault, deadly weapon or likely to produce great bodily injury] and (2) [assault, firearm]. Accordingly, these offenses are both lesser included within section 245.3.
“[W]here there are multiple lesser included offenses supported by the evidence at trial, a court exercising its discretion to modify the judgment pursuant to [sections 1181, subdivision 6 and 1260] should choose the offense with the longest prescribed prison term so as to effectuate the fact finder’s apparent intent to convict the defendant of the most serious offense possible. (Cf. § 654, subd. (a) [‘An act or omission that is punishable in different ways by different provisions of the law shall be punished under the provision that provides for the longest potential term of imprisonment . . . .’].)” (People v. Navarro (2007) 40 Cal.4th 668, 681 (Navarro).)
In Navarro, there was insufficient evidence to support the as portation of a vehicle element of attempted kidnapping during the commission of a carjacking, but sufficient evidence of the lesser included offenses of both attempted kidnapping and attempted carjacking. Reversing the appellate court, which substituted both lesser offenses for the one greater offense, our Supreme Court held only one of multiple lesser included crimes may replace a single greater offense. Although the low and middle terms were the same for both lesser offenses, the high terms differed. For attempted carjacking, it was four years six months; for attempted simple kidnapping, it was four years. The Navarro court reasoned that, since attempted carjacking provides a higher maximum sentence than does attempted kidnapping, the conviction for attempted kidnapping during the commission of a carjacking should be modified to attempted carjacking. (Navarro, supra, 40 Cal.4th at p. 681.)
As in Navarro, here the evidence supports two possible lesser offenses: violations of subdivisions (a)(1) and (a)(2) of section 245. And, as in Navarro, punishment under the two subparagraphs differs only slightly. Unlike Navarro, the differences are in the minimum sentence for a defendant who is placed on probation, an unlikely result here. The minimum punishment for violation of subdivision (a)(1) is a fine and no confinement time; the minimum for violation of subdivision (a)(2) is not less than six months in county jail. The felony imprisonment range is the same for both subdivisions, three, four and five years. Under Navarro, we could ourselves modify the judgment to amend counts 6, 7, and 8 to assault with a firearm, the offense with the arguably greater minimum sentence. However, because the sentence differences for the two offenses are relatively insignificant and in the context of the present case may be theoretical at best, we remand to the trial court to select which lesser offense to impose under the principles articulated in Navarro. We also remand to the trial court for full resentencing. (Navarro, supra, 40 Cal.4th at p. 681 [remand for full sentencing appropriate so that trial court can exercise its sentencing discretion in light of changed circumstances].)
B. Sentencing Errors
Defendant contends that the trial court erred by (1) improperly using the finding that defendant used a firearm both to impose the upper term on count 6 and to impose a gun-use enhancement pursuant to section 12022.5, subdivision (a); and (2) imposition of the upper term on count 6 violated the principles set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Because we remand for a full resentencing, these contentions are moot. For the benefit of the trial court on remand, we make the following observations.
“[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (§ 1170, subd. (b); see also Cal. Rules of Court, rule 4.420(c).) But so long as at least one aggravating circumstance is established by means that satisfy the Sixth Amendment, a defendant is eligible for the high term. (People v. Black (2007) 41 Cal.4th 799, 816 (Black); People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval).) In People v. Calhoun (2007) 40 Cal.4th 398, 406, our Supreme Court held that conviction of separate counts naming separate victims supports imposition of the high term based on the aggravating factor of multiple victims and does not violate the principles set forth in Blakely and Cunningham. And in Black, the court held that a single prior conviction renders a defendant eligible for the high term. (Black, at p. 817.)
To the extent defendant argues that Sandoval and Black were wrongly decided, we are obliged to follow those cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 453.)
DISPOSITION
The judgment of conviction of assault upon a custodial officer in violation of section 245.3 on counts 6, 7, and 8 is reversed and the matter is remanded for the trial court to select which lesser offense to impose and for full sentencing; in all other respects, the judgment is affirmed.
WE CONCUR: COOPER, P. J., FLIER, J.
Assault with a firearm upon a peace officer, the charge the prosecutor intended to bring, is made punishable by section 245, subdivision (d)(1) which provides: “Any person who commits an assault with a firearm upon the person of a peace officer . . . and who knows or reasonably should know that the victim is a peace officer . . . engaged in the performance of his or her duties, when the peace officer . . . is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years.”
There is no express firearm element in section 245.3, which makes punishable “an assault with a deadly weapon or instrument or by any means likely to produce great bodily injury upon the person of a custodial officer . . . .” The sentence range is three, four, or five years.