Opinion
G052362
03-13-2017
THE PEOPLE, Plaintiff and Respondent, v. CAMERON ANSEL MITCHELL, Defendant and Appellant.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT
It hereby is ordered that the opinion filed in the above-entitled matter on March 13, 2017, is MODIFIED as follows:
1. On page 21, at the end of the third complete sentence at the top of the page, stating "Nothing further was required," add the following footnote 6:
6 In a rehearing petition, Mitchell contends we have misread the record and his argument. Seizing on ambiguities in the information and the jury's verdict form concerning which residence was the subject of the burglary count, Mitchell contends there were two potential burglaries—one involving Holly's residence and a second involving the neighbor's residence—but he was only charged and convicted for the burglary
involving Holly's residence. Mitchell therefore concludes the multiple victim exception cannot apply as a matter of law because Holly's neighbor was not present during the burglary of Holly's residence, and therefore she cannot be a victim of that burglary. The record does not support Mitchell's claim. The parties, the court, and the jury all understood the burglary charge referred to the neighbor's residence. During closing argument, the prosecutor specifically told the jury the burglary involved the neighbor's residence, and Mitchell did not object or argue otherwise. Moreover, in the briefing and argument on Mitchell's sentencing, he never raised the argument that the burglary for which he was charged and convicted involved Holly's residence, not the neighbor's. Rather, Mitchell asserted there was only one victim because the target of Mitchell's entry into the residence was Holly, not the neighbor. Mitchell's belated argument therefore is without merit.
This modification does not change the judgment.
The rehearing petition appellant and defendant Cameron Ansel Mitchell filed is DENIED.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. 11NF3787) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant and appellant Cameron Ansel Mitchell guilty of deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), torture (206), and first degree residential burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)). The jury also found true enhancements for personally using a dangerous or deadly weapon (§ 12022, subd. (b)(1)) and personally inflicting great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court sentenced Mitchell to a total term of 19 years to life based on consecutive sentences for the attempted murder and burglary counts and the enhancements for the attempted murder count. The court stayed the sentence on the torture count and the enhancements for the burglary count.
All statutory references are to the Penal Code.
Mitchell contends the trial court erred by failing to instruct the jury sua sponte on unconsciousness as a complete defense to the charged crimes. Whether the court should have given an instruction on unconsciousness presents a close issue that we need not resolve because any possible error was harmless. The jury necessarily resolved the factual question an unconsciousness instruction would have posed when the jury found Mitchell premeditated and deliberated the attempted murder. In making this finding, the jury necessarily rejected Mitchell's defense that his unconscious mental condition and voluntary intoxication at the time of the attack prevented him from acting with the specific intent required for the charged crimes.
Mitchell also contends the trial court erred in sentencing him to consecutive terms on the attempted murder and burglary counts. According to Mitchell, section 654 required the court to stay the sentence on the burglary count because both crimes were part of an indivisible course of conduct against a single person. The court applied the multiple victim exception to section 654 because part of the attack occurred in the condominium of Mitchell's former fiancée's neighbor while the neighbor was present. Although neither the information nor the jury's findings identified the neighbor as a burglary victim, the court may make its own factual determination in deciding whether section 654 applies provided its findings do not conflict with the jury's findings and are supported by substantial evidence. The record supports the trial court's application of the multiple victim exception.
Finally, Mitchell contends the trial court erred in calculating his presentence credits by failing to include time he spent in the hospital under police supervision. Mitchell, however, misconstrues the standard for calculating presentence credits.
We therefore affirm the judgment in its entirety.
I
FACTS AND PROCEDURAL HISTORY
In June 2008, Mitchell began dating Holly M., and after several months, he moved in with her and her three-year-old son. During their relationship, Mitchell and Holly broke up several times, but each time he would move back into her condominium after a few days. In September 2010, Holly broke up with Mitchell and asked him to move out after he barricaded himself in a bedroom and threatened to kill himself. Holly called the police for help, but Mitchell jumped out of a window before they arrived. Around this time, Holly also discovered Mitchell had lied to her and that he had cheated on her with another woman.
Mitchell and Holly started dating again about a month later, but he did not move back into her condominium. In November 2010, the couple became engaged, but they continued to have many of the same problems, and in the fall of 2011, Holly broke off the engagement with both of them agreeing it was best that they stopped seeing each other. Holly testified that Mitchell was never violent during their relationship.
Shortly after they broke off the engagement, Mitchell repeatedly called Holly and asked to see her. He often broke down in tears and told Holly he could not live without her. When Holly refused to get back together, Mitchell became angry, yelling at Holly and calling her names. Mitchell also came to Holly's condominium and repeatedly rang the doorbell. When she did not answer, he left letters on the front door and sent Holly numerous text messages. Finally, Holly sent Mitchell a text message saying, "Please stop contacting me. I don't want to speak to you anymore."
Mitchell testified he was under a lot of stress at work during this time and he started drinking excessively. On December 8 or 9, 2011, Mitchell went to dinner with an ex-girlfriend, Nicole Probst, and cried uncontrollably throughout the meal. At Mitchell's request, Probst phoned Holly, and asked her to give Mitchell another chance because he loved her. Holly told Probst she was happy with her life, she was seeing someone else, and she did not want to get back together with Mitchell.
On December 10, 2011, Mitchell's friend, Heather Starr, phoned and asked him to meet her at a local brewery. After drinking beers at the brewery, Mitchell and Starr drove to a liquor store to buy more beer and then stopped at a nearby park to view Christmas lights. The two drank beer at the park before going to Starr's home where Mitchell stayed on the porch weeping while Starr got sick in the bathroom. Mitchell and Starr then ordered a pizza and drank more beer. Mitchell recalled he became "kind of hysterical," unable to have a conversation. Starr testified Mitchell had a blank expression on his face she had never seen before and was "completely shut down" all evening.
Mitchell testified he left Starr's home about 11:30 p.m. and drove to Holly's condominium to pick up some of his possessions he left behind, including some gifts Holly's son made for him. He parked about a half mile away because he was concerned Holly's former roommate might vandalize his car. When Holly did not answer her door, Mitchell began walking back to his car but laid down on the grass near Holly's condominium and fell asleep. A noise suddenly woke him up and he saw a man he did not recognize walking toward Holly's condominium.
The man was Holly's new boyfriend, Troy P., and he was coming to see Holly after getting off work between midnight and 1:00 a.m. Mitchell followed Troy up the stairs to Holly's condominium, and when she answered the door Holly saw Troy with Mitchell standing behind him. Holly let Troy into her condominium, but she told Mitchell to go away. When Holly tried to shut the door, Mitchell pushed his way into her condominium and began arguing with Holly. She asked Troy to go into the other room and call the police. As Troy started to do so, Mitchell pushed Holly against the wall and Troy came back to stand between them. Mitchell then grabbed Troy by the shirt and Holly moved around behind Mitchell. She put her arms around Mitchell's neck in a headlock and said he needed to leave.
Troy suggested they go outside to talk and Mitchell agreed. Holly let go of Mitchell and the three walked outside to the small landing in front of her condominium. Holly locked the door behind them and again told Mitchell he must leave. When Mitchell began yelling at Holly, she threatened to call the police if he did not leave immediately. As Holly took out her phone to call the police, Mitchell pushed her and then threw her phone down the stairs. Holly told Troy to go downstairs where Mitchell could not reach him and call 911.
As Troy started down the stairs, Mitchell pulled out a small knife and stabbed Holly twice in the chest, saying, "I told you I'd love you until death." Troy ran back up the stairs to help Holly, but Mitchell lunged at him with the knife and caused Troy to stumble back down the stairs. Holly also tried to escape down the stairs, but Mitchell stabbed her again in the back as she fled.
Troy ran to his car to call the police with Mitchell in pursuit. But when Troy got to his car, he turned and saw Mitchell was no longer chasing him. Troy got into his car and called the police. While Mitchell pursued Troy, Holly ran to a neighbor's condominium for help. She rang the doorbell and pounded on the front door, pleading for the neighbor's help and to call 911. The neighbor opened the door to let Holly in and reached for the phone to call the police.
Before the neighbor could make the call, Mitchell barged through the door and attacked Holly again with the knife. The neighbor ran to the bathroom, locked the door, and called the police. Holly begged Mitchell not to kill her and leave her son without his mother. Mitchell responded he also had a close relationship with the boy until Holly took that away from him. Holly tried to block Mitchell's blows and curled up in the fetal position as he repeatedly stabbed her in the face, chest, and arms. When Mitchell suddenly stopped and left, Holly screamed for her neighbor's help.
Holly lay on the ground bleeding profusely from her wounds and the carpet beneath her was soaked with her blood. The police arrived and struggled to keep Holly conscious and to stop the bleeding while they waited for the paramedics. Holly sustained stab wounds to her face, through the bottom of her chin and into the roof of her mouth, in her neck and chest, in her arms and back, and into both her heart and liver. She underwent ten surgeries to repair the holes in her heart, and was fortunate to survive Mitchell's attack. She continues to suffer pain from her injuries, has limited use of her hands, and cannot perform any heavy physical activity.
Probst received an early morning phone call from Mitchell after his attack on Holly. He said he had punctured a hole in his chest and was calling to say goodbye. Mitchell testified he had little or no memory of his encounter with Holly after she grabbed him from behind. He woke up the next morning in the backyard of a house a few blocks away from Holly's condominium and was covered in blood. Mitchell did not know where he was and wandered out of the backyard and onto a nearby street. He flagged down a man driving by and asked him to call the police and an ambulance. When the man asked what happened, Mitchell said he had gone to patch things up with his girlfriend, but had ended up doing "something bad."
An ambulance arrived and took Mitchell to a nearby hospital, where staff found him wearing two pairs of pajama pants, two pairs of jeans, two shirts, and two sweatshirts. The police found an additional jacket, sweatshirt, and shirt belonging to Mitchell on the ground outside the condominium of Holly's neighbor. In the yard where Mitchell woke up, police found a drawing in blood on the wall that looked like either a heart with the letter "S" written inside of it or the Superman logo. The police also found blood on the ground and Mitchell's cellphone in a nearby trash can. For several days after the attack, Mitchell remained under police supervision in the hospital while recovering from several surgeries to treat his self-inflicted stab wounds.
The police arrested Mitchell after he was released from the hospital. A few days later, the prosecution charged Mitchell with (1) willful, deliberate, and premeditated attempted murder; (2) torture; and (3) first degree residential burglary. The information included enhancements for personally using a dangerous or deadly weapon and personally inflicting great bodily injury under circumstances involving domestic violence.
The information also charged Mitchell with aggravated assault with a deadly weapon (§ 245, subd. (a)(1)) on Troy, but that charge is not at issue on appeal.
Mitchell's defense at trial focused on his mental condition and whether he formed the intent necessary for the charged crimes. He called three mental health professionals to testify. Dr. Rebecca Hedrick, a psychiatrist, testified about her examinations and treatment of Mitchell while he was in the hospital. She diagnosed him as suffering from major depressive disorder with psychotic features, describing him as withdrawn, exhibiting dissociative symptoms, and in a catatonic state. Dr. Hedrick explained, "When someone is in a major trauma, they will frequently dissociate, which means kind of an out-of-body experience or - not being in contact with reality, not being aware of what's going on, not being able to make new memories." She identified Mitchell's catatonia as a symptom of severe depression, describing it as "a mutism, not talking, psychomotor retardation, not moving, and not being aware of the environment and not interacting with the environment." Finally, Dr. Hedrick described the psychotic features of Mitchell's diagnosis as "having psychosis, the impaired reality testing, and the bizarre behavior, disorganized thoughts that he was exhibiting prior to the admission." To treat Mitchell, Dr. Hedrick prescribed Seroquel, a "mood stabilizer antipsychotic," and Ativan.
Dr. Adrian Preda, a psychiatrist, also examined Mitchell while he was in the hospital and echoed much of Dr. Hedrick's diagnosis. But he also testified Mitchell suffered a brief psychotic disorder, explaining that "under significant threats, people could have unusual experiences such as hearing things, hearing voices, seeing things, having strange fixed ideas about - about what might be happening to them. [¶] . . . [¶] It's a break to reality and acute stress." Dr. Preda explained Mitchell's catatonia was improving with time and he began to have fragmented memories of the attack on Holly during his hospital stay.
Finally, Mitchell called Dr. Nancy Kaser-Boyd, a forensic psychologist. She also diagnosed Mitchell with major depressive disorder with psychotic features, explaining the condition can lead to an explosion of anger where "there's a complete loss of control. [The person is] sort of propelled by the emotion and [he or she] may not be aware of everything they're doing." Dr. Kaser-Boyd also testified that such "high states of emotion often impair memory, just like a traumatic event impairs memory."
The trial court instructed the jury on the elements of each crime, including the mental state required. The court also instructed on voluntary intoxication and Mitchell's mental condition as defenses if the jury found either prevented Mitchell from having the required mental state. Mitchell did not request and the trial court did not give an unconsciousness instruction. The jury returned verdicts finding Mitchell guilty of attempted murder, torture, and first degree residential burglary. The jury also made the following findings: (1) Mitchell committed the attempted murder with premeditation and deliberation; (2) the residence was occupied at the time Mitchell committed the residential burglary; (3) Mitchell personally used a deadly weapon in committing attempted murder, torture, and first degree residential burglary; and (4) Mitchell personally inflicted greatly bodily injury in circumstances involving domestic violence when he committed the attempted murder and residential burglary.
On the charge relating to Troy, the jury found Mitchell not guilty of assault with a deadly weapon, but guilty of simple assault (§ 244) as a lesser included offense.
The trial court sentenced Mitchell to a total term of 19 years to life, based on consecutive sentences for the attempted murder and burglary counts and the enhancements for the attempted murder count. Under section 654, the court stayed the sentences on the torture count and the enhancements for the burglary count.
The court also sentenced Mitchell to six months on the assault count.
II
DISCUSSION
A. The Trial Court Did Not Prejudicially Err by Failing to Instruct the Jury on Unconsciousness
Mitchell contends the trial court erred by failing to instruct the jury sua sponte on the defense of unconsciousness per CALCRIM No. 3425 "or an equivalent instruction." He argues the trial court's failure to instruct the jury on unconsciousness violated his due process right to have the jury determine every material issue. As we explain, whether the court should have given an unconsciousness instruction is a close issue, but one we need not resolve. Even assuming, the court erred, we conclude Mitchell did not suffer any prejudice because the jury necessarily resolved the factual question an unconsciousness instruction would have posed based on the court's other instructions.
"A person 'who commit[s] the act charged without being conscious thereof' is deemed incapable of committing a crime." (People v. Gana (2015) 236 Cal.App.4th 598, 609 (Gana), quoting § 26, par. Four.) "Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime." (People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).) "'Unconsciousness for this purpose need not mean that the actor lies still and unresponsive. . . . Thus unconsciousness "'can exist . . . where the subject physically acts in fact but is not, at the time, conscious of acting.'"'" (Gana, at p. 609; see Rogers, at p. 887.) "An unconscious act, as defined 'within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional.'" (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1083.) "A trial court must instruct on unconsciousness on its own motion if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant's theory of the case." (Rogers, at p. 887.)
Here, Mitchell did not rely on the defense of unconsciousness. None of Mitchell's experts testified Mitchell was unconscious during the attempted murder. Mitchell recalled details of his argument with Holly, but claimed he had no memory of events after she grabbed him from behind. Mitchell's trial attorney in closing argument asked the jury to acquit Mitchell because he was suffering from a "major depressive disorder with psychotic features" and therefore he did not form the requisite mental states for attempted murder, torture, and burglary. Counsel, however, never claimed Mitchell was unconscious.
The trial court, however, has a sua sponte obligation to instruct on a defense supported by substantial evidence and not inconsistent with the defendant's theory of the case, even if a defendant does not expressly rely on that defense. (Rogers, supra, 39 Cal.4th at p. 887.) Substantial evidence in this context means evidence sufficient for the jury to rely on when considering the defense. (People v. Salas (2006) 37 Cal.4th 967, 982.) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt. . . .'" (Ibid.) Any doubt whether to give the instruction should be resolved in the defendant's favor. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
Mitchell's failure to recall attacking Holly, by itself, does not support an unconsciousness instruction. (Rogers, supra, 39 Cal.4th at p. 888.) Mitchell, however, contends the testimony of his experts required the trial court to instruct on unconsciousness as a defense. Specifically, he cites Dr. Preda's explanation that Mitchell's psychosis triggered a break with reality and emphasizes Dr. Kaser-Boyd's testimony that Mitchell suffered a major depressive disorder with psychotic features, which triggered an "automatic reaction" stemming from "the more primitive brain" so that a person may "not be aware of everything they're doing." Mitchell asserts that "[w]hile the expert did not use the word 'unconscious,' it would seem that the state of not being aware of what one is doing describes precisely the state of mind that the law defines as unconsciousness."
Mitchell relies on our decision in Gana to support his argument the trial court should have given an instruction on unconsciousness. In Gana, the defendant was charged with the first degree murder of her husband and the deliberate and premeditated murder of her two sons. (Gana, supra, 236 Cal.App.4th at p. 601.) At the time of the crimes, the defendant was undergoing chemotherapy to treat her breast cancer, and also was prescribed other medications to mitigate the harmful effects of the chemotherapy. The defendant presented expert medical testimony explaining how these medications affected her mental state. A defense expert concluded the defendant suffered "from a psychosis likely caused by 'a combination of events, combination of factors, including both her depression as well as the medications that she was taking. It appears that she was experiencing a delirium, which is a kind of fluctuating level of consciousness, due to medical illness that caused her to . . . have worsening symptoms of depression and worsening psychoses." (Id. at p.610.) Based on this evidence, we held the trial court erred in failing to instruct the jury on the defense of unconsciousness, but that the error was harmless. (Id. at pp. 610-611.)
Relying on Gana, and other authorities, the appellate court in People v. James (2015) 238 Cal.App.4th 794 concluded the trial court erred in refusing to give CALCRIM No. 3425 on the defense of unconsciousness. There, the defendant's psychiatric expert testified the defendant suffered a "'brief episode of psychosis or loss of touch with reality,'" and while committing mayhem and assault the defendant "'did not have awareness of what took place at that time.'" (Id. at p. 801.) Based on the defense expert's testimony, the defendant's lack of recollection of his actions, and his unresponsive behavior after the crime, the court concluded an unconsciousness instruction should have been given, explaining the defense applies when caused by mental illness, and is not limited "just to those who are rendered unconscious by physical or organic conditions." (Id. at p. 809.)
Mitchell correctly notes his diagnosis of major depression with psychosis was identical to the defendant in Gana, and we note Mitchell also shared the same diagnosis with the defendant in James. The experts in all three of these cases testified the nature of the particular defendant's psychosis caused the defendant to break with reality and act without awareness. A defendant suffering a psychotic episode is not automatically entitled to an unconsciousness instruction, however. Psychosis is a general term encompassing symptoms of varying degrees and stemming from one or more distinct mental disorders. (See The Free Dictionary by Farlex <http://medical-dictionary.thefreedictionary.com/ schizophrenia> [as of March 1, 2017].) Thus, determining whether a defendant acted unconsciously during a psychotic episode usually depends on an expert witness's explanation of the defendant's mental state.
Here, the issue was close, and in close cases the trial court should give the instruction. (People v. Tufunga, supra, 21 Cal.4th at p. 944 ["'"Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused"'"].) But we need not determine whether the court erred in failing to give an instruction on the defense of unconsciousness because any conceivable error was harmless.
A trial court's failure to instruct on a possible defense is not prejudicial to the defendant—and does not require reversal—"if '"the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding [favorable to the defendant] has been rejected by the jury."'" (Gana, supra, 236 Cal.App.4th at p. 610, quoting People v. Wright (2006) 40 Cal.4th 81, 98 (Wright).)
In Gana, this court concluded the trial court's failure to give an unconsciousness instruction did not prejudice the defendant because the error "did not bar [her] from presenting a meaningful defense based on her mental condition because she 'was permitted to use the same underlying facts to mitigate the crime[s].' [Citation.] On the charged crimes and allegations, the court told the jury it could consider the evidence of mental disease, defect, or disorder in determining whether defendant 'actually formed the required specific intent or mental state[s].' And the jury was told that if it found she suffered from a hallucination or delusion during the shooting, it could consider this evidence in determining whether she 'killed or attempted to kill with or without deliberation and premeditation, and/or lying in wait.' The court also instructed the jury that if it found defendant was intoxicated, it could consider this fact 'in deciding whether [she] had the required specific intent and/or mental state' for the crimes. Further, as to the murder charge the jury was given the option of convicting defendant of the lesser included offense of second degree murder." (Gana, supra, 236 Cal.App.4th at p. 610.)
The Gana court further explained, "[These instructions] afforded [the jury] the opportunity to consider how [the defendant's] cancer and the drugs she was taking to combat the disease affected her ability to form the specific intents and the mental state of malice necessary to support her convictions on the charged crimes and the true findings on the associated special circumstance and allegation. By its verdicts and findings the jury clearly 'rejected defendant's [mental state] defense' [citation] in another context and thus the refusal to instruct on unconsciousness was harmless error." (Gana, supra, 236 Cal.App.4th at pp. 610-611.)
Here, the trial court omitted an instruction on unconsciousness, but it did instruct the jury on the mental state required for each charged crime, and in particular the mental state required for willful, deliberate, and premeditated attempted murder. The court explained Mitchell "acted willfully if he intended to kill when he acted," he "deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill," and he "premediated if he decided to kill before acting." The court also specifically instructed the jury on mental impairment as a defense, explaining the jury could consider evidence Mitchell suffered from a mental disorder in deciding whether the prosecution met its burden to show Mitchell acted with the intent to kill and with deliberation and premeditation. Similarly, the court instructed the jury it could consider Mitchell's voluntary intoxication in deciding whether Mitchell acted with the requisite intent for each crime. Based on these instructions and the evidence regarding Mitchell's mental condition, his counsel repeatedly argued to the jury that it should find Mitchell not guilty because his mental condition prevented him from forming the intent required for the charged crimes.
Accordingly, Mitchell suffered no prejudice from the trial court's failure to instruct on unconsciousness. The court's instructions allowed the jury to consider the evidence regarding Mitchell's mental condition and decide whether that condition prevented him from forming the specific intent necessary to commit the charged crimes. By finding Mitchell acted with the necessary intent, and specifically with deliberation and premeditation, the jury necessarily resolved the question whether Mitchell acted consciously against him. Indeed, Mitchell could not have acted with deliberation and premeditation if he did not act consciously. Any error by the trial court therefore was harmless.
Mitchell contends the jury did not necessarily resolve the question whether he acted consciously because the trial court's instructions did not apprise the jury of the governing legal principles regarding unconsciousness. In particular, the instructions did not explain that contrary to the ordinary meaning of the term unconscious, Mitchell could perform the physical acts involved in his attack on Holly while meeting the definition of unconsciousness under the law. Mitchell's argument, however, misconstrues the governing standard for determining whether the failure to give an instruction prejudiced him.
The question is not whether the instructions given apprised the jury of the governing legal principles on unconsciousness as a defense. If the instructions given had apprised the jury of the governing legal principles, then there would be no error, let alone a question of whether the error prejudiced Mitchell, because the jury would have been adequately and properly instructed. Indeed, the trial court in Gana did not instruct the jury on the legal principles regarding unconsciousness, but other instructions and the jury's findings resolved the issue of the omitted instruction against the defendant and therefore there was no prejudice.
The issue here is whether the factual question posed by the omitted unconsciousness instruction was necessarily resolved against Mitchell under other instructions the court gave the jury. Here, as in Gana, the factual question posed was whether Mitchell was aware of his actions when he attacked Holly. The jury necessarily resolved that question against Mitchell when it decided that he acted deliberately and with premeditation even after the jury heard all of the evidence about Mitchell's mental condition and how that evidence supported his claim he lacked the necessary intent to commit the charged crimes. Mitchell offers no authority that supports his contention the jury did not decide this question, and he offers no response to Gana and its application of the governing prejudice standard.
Next, Mitchell argues the trial court's failure to instruct on unconsciousness was prejudicial per se. In support, Mitchell cites People v. Newton (1970) 8 Cal.App.3d 359 (Newton), but that case is inapposite. In Newton, a defendant charged with murder was convicted of voluntary manslaughter. The evidence supported the defense that the defendant was in a state of unconsciousness after the victim shot him in the abdomen. (Id. at pp. 375-376.) The Court of Appeal concluded the trial court's failure to instruct on unconsciousness was prejudicial per se because the failure deprived the defendant of his constitutional right to have the jury determine every material issue presented by the evidence. The court also found actual prejudice because the failure to instruct on unconsciousness provided the jury with no basis to acquit the defendant if it believed the defendant was unconscious. (Id. at pp. 378.)
Here, the omission of an unconsciousness instruction did not deprive Mitchell of his right to have the jury decide all material issues. As explained above, the jury necessarily decided the factual question posed by the omitted unconsciousness instruction when it found Mitchell acted deliberately and with premeditation and the intent to kill despite the evidence regarding his mental condition and the trial court's instruction they could rely on that evidence as a possible defense. In Newton, the record did not show the jury necessarily decided the factual question posed by an unconsciousness instruction against the defendant. Rather, the record suggested the jury accepted the defendant's diminished capacity defense because it convicted him of manslaughter as a lesser included offense of murder; prejudice arose because the trial court did not give the jury the option to acquit the defendant based on the same evidence. Here, the jury necessarily rejected Mitchell's mental condition as even a partial defense, and therefore no prejudice resulted from the omitted unconsciousness instruction.
Finally, Mitchell contends we must evaluate the prejudice allegedly caused by the trial court's failure to give an unconsciousness instruction under the more stringent standard established by Chapman v. California (1967) 386 U.S. 18, for federal constitutional errors, rather than the more lenient standard established by People v. Watson (1956) 46 Cal.2d 918, for state law errors. We need not decide this question because our Supreme Court has held that a trial court's error in failing to provide a required instruction is harmless under either standard when the jury necessarily resolved the factual question posed by the omitted instruction under another properly given instructions. (Wright, supra, 40 Cal.4th at p. 99.) B. Substantial Evidence Supports the Trial Court's Decision Section 654 Did Not Prevent Consecutive Sentences Based on the Multiple Victim Exception
Mitchell contends the trial court erred in failing to stay his sentence on the residential burglary count under section 654 because his conduct underlying the attempted murder, torture, and residential burglary offenses formed part on an indivisible course of conduct against a single person, and therefore the court could only impose punishment for attempted murder as the crime with the longest term of imprisonment. The Attorney General argues the trial court properly sentenced Mitchell to consecutive terms for the attempted murder and residential burglary counts based on the multiple victim exception to section 654 because Holly's neighbor was a victim on the burglary count. The record supports the trial court's sentence.
Section 654 provides, "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." (§ 654, subd. (a).) "The purpose of the statute 'is to ensure that a defendant's punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act.' [Citation.] [¶] Section 654 precludes multiple punishments for a single act or omission or for an indivisible course of conduct." (People v. Cardenas (2015) 239 Cal.App.4th 220, 229 (Cardenas).)
"Our Supreme Court has held that section 654 does not prohibit multiple punishments where the defendant's single objective during an indivisible course of conduct results in crimes of violence against multiple victims. [Citations.] [¶] Under the multiple victim exception, '"'even though a defendant entertains but a single principal objective during an indivisible course of conduct, he [or she] may be convicted and punished for each crime of violence committed against a different victim.' [Citations.]"' . . . To preclude application of section 654, however, each of the crimes must have involved at least one different victim." (Cardenas, supra, 239 Cal.App.4th at p. 230; see People v. Davey (2005) 133 Cal.App.4th 384, 390-391, declined to follow on other grounds in People v. Correa (2012) 54 Cal.4th 331, 343.) "'The reason for the multiple victim exception is that "when a defendant '"commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons," his greater culpability precludes application of section 654.'" [Citation.]'" (People v. Centers (1999) 73 Cal.App.4th 84, 99 (Centers).)
"Burglary, standing alone, is not a violent crime for purposes of the multiple victim exception. [Citations.] However, it may be treated as such when there is a finding that the defendant inflicted great bodily injury in the commission of the burglary." (Centers, supra, 73 Cal.App.4th at p. 99; see Cardenas, supra, 239 Cal.App.4th at pp. 230-231.) Moreover, "[w]hen a particular burglary is considered 'in conjunction with any allegations in enhancement,'" it may become a violent crime for purposes of the multiple victim exception. (Cardenas, at p. 233.)
In Centers, the Court of Appeal concluded burglary was a violent crime that supported application of the multiple victim exception because the jury also found the defendant used a firearm in committing the burglary. (Centers, supra, 73 Cal.App.4th at p. 99 ["any crime involving the 'use' of a firearm should be deemed violent for this purpose"].) In Centers, the defendant broke into a home where the victim was present with three other people. The defendant pointed a handgun at the victim and forced the victim to leave with him because the victim owed him money. (Id. at pp. 88-89.) The jury convicted the defendant of burglary and kidnapping, and found he used a firearm in committing the crimes. The trial court sentenced the defendant to consecutive terms for these crimes, finding section 654 did not apply based on the multiple victim exception. (Centers, at pp. 90, 98.) The Centers court affirmed the sentence because "there was at least one victim of the burglary and the personal firearm use who was not also a victim of the kidnapping." (Id. at pp. 101-102.) Specifically, "Raines was indubitably the victim of the kidnapping [and a woman who was present when the defendant broke in] was the victim (or at least a victim) of the burglary, because she lived in the home." (Ibid.)
Here, the burglary count qualifies as a violent crime because the jury found Mitchell used a dangerous or deadly weapon and committed the burglary crime under circumstances involving domestic violence. Moreover, Holly was the victim of the attempted murder and torture, and Holly's neighbor was at least one of the victims of the burglary because Mitchell broke into the neighbor's condominium to resume his attack on Holly while the neighbor was present. (See Centers, supra, 73 Cal.App.4th at pp. 101-102, citing People v. Davis (1998) 18 Cal.4th 712, 720-722 ["burglary statute protects occupant's possessory interest in building"].)
Mitchell contends the multiple victim exception does not apply because the information and the jury's findings only identify Holly as the victim of the burglary; they do not separately identify Holly's neighbor as an additional victim. This contention lacks merit because neither the information nor the jury's findings are required to identify the victims for the trial court to apply the multiple victim exception and sentence a defendant to consecutive terms. (People v. Deegan (2016) 247 Cal.App.4th 532, 545 (Deegan) ["the courts have held that 'in the absence of some circumstance "foreclosing" its sentencing discretion . . . , a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts'"]; Centers, supra, 73 Cal.App.4th at p. 101 ["the trial court could properly find multiple victims even though the information did not specify, and the jury did not make any finding regarding, the identity of any victim of the burglary or the personal firearm use"].)
In count three, the information charged Mitchell with first degree residential burglary of an inhabited dwelling, alleging he "did unlawfully enter an inhabited dwelling house, trailer coach, and inhabited portion of a building, inhabited by [Holly], with the intent to commit aggravated domestic assault against victim, a felony." (Some capitalization omitted.)
The jury's verdict found Mitchell guilty of "the crime of burglary first degreeinhabited dwellingother felony only, a Felony, in violation of Section 459460(a) of the Penal Code of the State of California, as charged in count 3 of the Amended Information. [¶] Holly M." (Some capitalization omitted.)
"'Ordinarily, in determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury.'" (Deegan, supra, 247 Cal.App.4th at p. 545, quoting Centers, supra, 73 Cal.App.4th at p. 101.) We review all implied and express findings to support the trial court's application of the multiple victim exception under the substantial evidence standard. (Deegan, at p. 545 & fn. 4; Centers, at p. 101.)
Here, substantial evidence supports the trial court's finding that Holly's neighbor was a victim of the burglary, and therefore the multiple victim exception applied. The evidence shows Mitchell entered the neighbor's condominium while she was helping Holly and calling the police. The evidence further shows Mitchell entered the neighbor's condominium and resumed stabbing Holly numerous times before leaving her for dead as she lay bleeding on the floor. Holly's neighbor fled to the bathroom to call the police when Mitchell entered the residence and resumed his attack. Nothing further was required. (See People v. Mejia (2012) 211 Cal.App.4th 586, 605 ["Burglary ordinarily requires (1) unlawful entry into a building with (2) the intent to commit theft or any felony"].) The trial court therefore did not err in sentencing Mitchell to consecutive terms for the attempted murder and burglary counts. C. The Trial Court Did Not Err in Calculating Mitchell's Presentence Credits
Mitchell contends the trial court erred in calculating his presentence credits because it failed to include his time spent in the hospital. According to Mitchell, he was in custody and entitled to credit because the police said he was in custody and an officer was assigned to his hospital room around the clock. Mitchell contends his actual time and credits should have been 1,489 days instead of 1,478 days. We disagree because Mitchell misconstrues what amounts to custody for determining presentence credits.
Section 2900.5 provides, "when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . ." (§ 2900.5, subd. (a).) "The statute addresses a '"dual legislative purpose of 'eliminat[ing] the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts' [citation] and equalizing the actual time served in custody for given offenses. [Citation.]"' [Citations.] This 'reflect[s] the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration.'" (People v. Ravaux (2006) 142 Cal.App.4th 914, 920 (Ravaux).)
"The plain language of section 2900.5 addresses only residential custody arrangements and makes no mention of detention, seizure or arrest by the police as being the type of custody included in the calculation of custody credits. . . . It is clear from the plain language of the statute that custody credits are to be given for time spent within a residential detention facility, not for merely being in the custody of police." (Ravaux, supra, 142 Cal.App.4th at pp. 919-920.) "Being arrested and detained by the police, though certainly onerous, is not incarceration until the subject has been booked into jail." (Id. at p. 920.) Accordingly, "a defendant is not in custody within the meaning of section 2900.5 prior to being processed into a jail or similar custodial situation as described in section 2900.5, subdivision (a)." (Ravaux, at p. 919.) "The crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected 'is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.'" (In re Watson (1977) 19 Cal.3d 646, 651.)
Consistent with these standards, the trial court calculated Mitchell's presentence credits based on the date he was arrested and booked into jail, which was after the hospital released him. The time Mitchell spent in the hospital does not constitute custody for section 2900.5's purposes because he had not been arrested and booked. The police did not confine him in the hospital. He was there to receive treatment for his self-inflicted wounds and the surgery they required. Mitchell's time in the hospital is not attributable to the charges for which he was convicted.
The presence of a police officer in Mitchell's hospital room and the officer's statement that Mitchell was in custody do not establish that Mitchell was in custody under section 2900.5. These factors would be relevant in determining whether Mitchell was entitled to receive warnings under Miranda v. Arizona (1966) 384 U.S. 436, advising him of his rights to counsel and to remain silent. In that context, a person is in custody if a reasonable person in the same situation would believe the degree of the restraints on his or her movement were those associated with formal arrest. (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403, fn. 1.) That definition of custody, however, "is not compatible with the language or the purpose of [section 2900.5]. The custodial interrogation situations Miranda was meant to address are radically different than the type of residential custody that is the subject of section 2900.5. In Miranda custody was defined so that suspects who are detained by police for questioning would be advised of their rights. Section 2900.5 defines custody so that those who are incarcerated receive credit for the time they serve. Applying the Miranda standard in this context does not further the policy advanced in either. There is no authority applying this standard to custody credit determinations." (Ravaux, supra, 142 Cal.App.4th at p. 921.)
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.