Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. BA347246 Robert J. Perry, Judge.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Juan C. Sanchez.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant Juan Trinidad.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted appellant Juan C. Sanchez of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) (count 4); resisting an executive officer in violation of section 69 (count 5); and possession of a weapon while in custody in violation of section 4502, subdivision (a) (count 6). Sanchez admitted having suffered prior convictions for robbery and attempted murder within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), (the Three Strikes Law) as well as section 667, subdivision (a)(1). He also admitted a prior conviction for taking a vehicle without consent. The trial court sentenced Sanchez to a total prison term of 75 years to life. The sentence consisted of terms of 25 years to life in counts 4, 5, and 6, which the trial court ordered to be served consecutively.
All further references to statutes are to the Penal Code unless stated otherwise.
A jury convicted appellant Juan Trinidad of the same offenses: assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 1); resisting an executive officer in violation of section 69 (count 2); and possession of a weapon while in custody in violation of section 4502, subdivision (a) (count 3). Trinidad admitted having suffered prior convictions for robbery and voluntary manslaughter within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the Three Strikes Law), and section 667, subdivision (a)(1). After denying Trinidad’s motions for a new trial and his request to strike one of the strikes, the trial court sentenced Trinidad to a total term of 75 years to life consisting of terms of 25 years to life in counts 1, 2, and 3, which the trial court ordered to be served consecutively.
FACTS
Prosecution Evidence
Deputy Sheriff Jonathan Hill of the Los Angeles County Sheriff’s Department was assigned to the medical housing unit at the Men’s Central Jail located on Bauchet Street in Los Angeles. On August 25, 2008, he was called to participate in an Emergency Response Team (ERT) on the 3100A row of the jail. An ERT is not deployed unless the floor deputies cannot handle a situation. The row contained 26 single-occupancy cells containing a bunk, a sink, a chair, a small desk, and a toilet. The front of the cells consisted of bars.
At approximately 3:30 p.m., when Deputy Hill’s team arrived at the row, it was flooded. Water was pouring out from cells, and there was trash and debris everywhere, including some pieces of porcelain on the floor of the row. It appeared that inmates had clogged the toilets and kept flushing them, causing the water to keep pouring out. There was a lot of noise, yelling, and chanting.
The ERT assembled into an L-shaped formation to slowly move down the row. Two of the deputies in this formation carried shields that were placed flush against the cell doors to ensure that the cell occupant could not throw items or otherwise harm anybody on the team. The rest of the deputies formed a skirmish line perpendicular to the cells. The ERT thus gave the inmates an opportunity to peacefully come out of their cells while providing security for the deputies behind the formation. Two of the deputies in the skirmish line were equipped with shields, and they were placed alternately with two deputies carrying.40-millimeter less lethal weapons. The ammunition of these guns consisted of small rubber pellets, similar to buckshot.
As the skirmish line advanced, the leader of the ERT, Sergeant Mendoza, continually gave commands to the prisoners to “Go to the back of the cell. Face the back. Put your hands behind your back.” He would then order the inmates to move backwards slowly to the cell gate and pass their hands through a slot. At this point they would be handcuffed, the cell gate would be opened, and they would be escorted off the row.
When the deputies first arrived, most of the inmates were uncooperative. They were throwing items and making a lot of noise. Sergeant Mendoza ordered the deputies to shoot at any hands that were sticking out of the cell. Deputy Hill shot his less lethal gun approximately 11 or 12 times during the incident. When he first fired, the majority of the inmates went to the back of their cells as they were ordered.
The inmate in cell No. 12, Sanchez, and the inmate in cell No. 23, Trinidad, remained at the front of their cells, in violation of the order to retreat to the back of the cell. Deputy Hill could see from his position that both appellants “continued to throw porcelain at us.” He estimated that appellants threw porcelain “in excess of 15” times. Deputy Hill specifically recalled shooting at Trinidad’s hand, in which Deputy Hill saw pieces of porcelain. Deputy Hill was hit in the right upper thigh with a “three by three” piece of porcelain thrown by Trinidad. Pieces of porcelain collected from cell Nos. 12 and 23 were shown to the jury. In addition to the porcelain, appellant Sanchez threw a pipe at the deputies.
When the team of officers reached Sanchez’s cell, No. 12, he was uncooperative and said, “Fuck you. Surenos Trece, Punk.” When an inmate was compliant, no force was used. When an extraction had to be performed under the direction of the sergeant, force had to be used to extract the inmate from the cell. While Sanchez was being extracted from cell No. 12, an arm was “coming out of cell 23 throwing a piece of porcelain at the ERT Team.”
As the skirmish line advanced, whenever a deputy fired at Trinidad’s hands, he would retract his arm back into the cell momentarily. When Deputy Hill arrived at Trinidad’s cell, Trinidad was at the rear of his cell and was holding his mattress in front of him. Trinidad was extracted and removed from his cell after putting up a struggle.
A video of Trinidad’s and Sanchez’s cells was played for the jury (Peo. exh. No. 17). The video showed Trinidad’s porcelain sink with almost the entire front portion broken off. There was a cloth in Trinidad’s toilet. In Sanchez’s cell, No. 12, the sink was completely removed from the wall. The drainage pipe from Sanchez’s sink had been removed from the wall and was found outside on the row. The only cells with damage to the sinks were Nos. 12 and 23.
Los Angeles County Deputy Sheriff Jeffrey Demooy was part of the ERT and was assigned the task of making a video of everything that was going on. When he arrived at 3100A row he saw “just a lot of trash and a lot of water.” Deputy Demooy passed by cell Nos. 12 and 23 and was able to see the occupants, Sanchez and Trinidad, respectively. As Deputy Demooy advanced with the team, a piece of porcelain ricocheted off the wall and hit him in the knee. He testified that “it actually did hurt.” Deputy Demooy looked down on the floor and saw a piece of porcelain “the size of maybe a softball. A little bigger, but not round, of course.” When Deputy Demooy later examined his knee, he had a wound the approximate size of a 50 cent piece, and it was bleeding.
Deputy Demooy heard appellant Sanchez in cell No. 12 say “fuck you” to the officers who instructed him to prepare to be handcuffed. Sanchez failed to comply even when the officers fired the.40-millimeter weapon. Deputy Demooy saw Sanchez with his mattress held up to block the deputies’.40-millimeter gun. Sanchez “was in a fighting stance, closed fist, one leg back. Like a standard boxer’s fighting stance pretty much.”
When the team reached cell No. 23, Trinidad told the deputies to “fuck off.” Like Sanchez, Trinidad put up his mattress to block the officers’ weapons. Deputy Demooy personally observed both appellants Sanchez and Trinidad throwing pieces of porcelain sinks from their cells.
Los Angeles Deputy Sheriff Mario Juarez was also part of the ERT. His duty was to handcuff inmates with flexi-cuffs. He documented which inmates were merely escorted out of their cells and which had to be extracted. During this time, he heard the deputies being cursed and saw porcelain being thrown out of the cells by the inmates at the deputies.
Defense Evidence
Sanchez called Javier Luna, who was in custody, to the stand. Luna was familiar with Sanchez from the time they were both incarcerated on 3100A row in the Men’s Central Jail. Luna had occupied cell No. 14, and he remembered the disturbance on August 25, 2008. During the disturbance, Luna saw “a lot of stuff, like people screaming, like seeing an inmate getting beat up.” When the disturbance started, Luna was “running up and down the cell” because he did not know what to do. The deputies “blocked the row and just kept shooting at us.” Luna saw “sink stuff” being thrown around. Luna saw a couple of pieces of porcelain coming from the cell next to him. He could not remember whether he saw any porcelain coming from cell No. 12, Sanchez’s cell.
Luna heard a Taser being operated that day. The sound appeared to come from the cells with lower numbers than Luna’s cell. Luna was taken out of his cell after being handcuffed. He had faced the wall and had been given instructions by the sheriff. Luna was escorted out. He did not see what was going on in cell No. 12 because that cell had been vacated already.
Luna did not know Sanchez from outside of jail. Luna was convicted of a drug offense in 2007. He was arrested in 2007 for interfering with a police officer and involvement in a burglary or an attempted burglary. He also suffered a 2008 conviction for resisting a police officer.
DISCUSSION
I. Alleged Errors and Due Process Violations Attributed to Prosecutorial and Judicial Error in Count 4
A. Sanchez’s Arguments
In his arguments numbered I through IV, Sanchez contends that the verdict in count 4 must be reversed due to prosecutorial and judicial error. He further asserts he was denied his right to notice, the opportunity to defend, his right to confrontation, and his right to the effective assistance of counsel.
In his reply brief, Trinidad states that he joins in all arguments made by Sanchez, although in his opening brief he stated only that he joined in Sanchez’s arguments on the charge of resisting the deputies. We address Sanchez’s arguments on the assault counts as if raised by him alone, since they do not appear to apply to Trinidad’s situation. In any event, the result would be the same for Trinidad if he joined in these arguments.
B. Proceedings Below
On the first day of trial, the prosecutor sought to amend the information. Instead of charging Trinidad alone in count 1 and Sanchez alone in count 4 with the crime of assault with a deadly weapon in violation of section 245, subdivision (a)(1) against Deputies Hill and Demooy, respectively, the prosecutor wished to name both defendants in each count “to comport with what was in the preliminary hearing transcript.” She stated it was evident from her review of that transcript and the police report as well as a conversation with “the deputy” that it was Trinidad who threw the pieces of porcelain that struck Deputies Hill and Demooy. The prosecutor added that her conversation with the deputy clearly revealed that the assaults were “a concerted act by all of them” aiding and abetting, and that was how Sanchez was liable for the assaults as well. Defense counsel objected, and the trial court ruled that it was too late to amend the information.
Trial proceeded, and Deputies Hill and Demooy testified that Trinidad threw the pieces of porcelain that injured them. After the prosecutor rested, Sanchez’s counsel, Robert Welbourn, moved under section 1118.1 for a judgment of acquittal of count 4, which charged Sanchez with assault with a deadly weapon upon Deputy Demooy. The trial court commented that the case had been incorrectly charged, and the prosecutor should have named all the deputies on the ERT as victims rather than identify one deputy for each defendant. The trial court, however, did not grant the section 1118.1 motion. The trial court believed that, if there had been a single incident of porcelain being thrown, the defense argument would be well taken. Under the circumstances, however, it was clear that both defendants had thrown multiple pieces of porcelain at the advancing deputies. The trial court pointed out that it was not necessary to actually strike someone to commit an assault. The act of throwing a piece of porcelain in the direction of the deputies was a sufficient act to constitute a violation of section 245. The prosecutor reiterated her prior request to amend the information to name both appellants as aiders and abettors in the two assault counts. The trial court ruled that the trial would go forward without such amendment, but the court would allow the prosecutor to argue that a piece of porcelain did not have to hit the person to be an assault, and the jury could make the decision.
The prosecutor argued to the jury that an assault was committed as soon as the item was thrown at the deputies. “The law says it doesn’t even have to hit Deputy Hill for it to be an assault, but it did. It doesn’t even have to hit Deputy Demooy for this to be an assault, but it did. The law says the fact it hit can be used to prove that an assault happened. The fact that they both got injured shows that something hit them. That supports and bolsters their claim that they were assaulted and hit by the porcelain. And we know there were multiple throws by Mr. Sanchez, multiple throws by Mr. Trinidad, all at the deputies who are all in that unit. Now, it’s charged in a way that each one of them is charged with a separate deputy, but every time they threw, that was an assault.”
Welbourn pointed out to the jury during argument that Sanchez was charged with an assault against Deputy Demooy, and Deputy Demooy testified that it was Trinidad who hit him with a piece of porcelain. He argued that there was no evidence showing that in count 4, Sanchez committed an assault with a deadly weapon on Deputy Demooy.
In her rebuttal, the prosecutor argued again that “any time that they threw a piece of porcelain or a pipe at those deputies, that’s an assault. Not at the wall, not just randomly in the air. Whenever they throw at someone who is in that zone of danger. If I cock this water bottle and throw it at the jury pool and it hits alternate No. 1, it’s still assault on anyone within that zone of danger, regardless of who it hit. Now, it’s charged in this way.... But they assaulted every one of those ERT members. Every one of them was there working together, doing their job....” And later, “... the jury instruction is clear. The fact that it was thrown is the assault. The fact that some people were hit bolsters the assault.... Yes, Trinidad threw the piece that hit Hill. Trinidad threw the piece that hit Demooy. Did Sanchez throw pieces at Demooy as well? Yes, and that is count 4.” The prosecutor also stated, “If you believe that Mr. Sanchez [threw] a piece of porcelain at those deputies, that’s the 245. That is the assault with a deadly weapon.” “Count 4 as to Mr. Sanchez, same thing. He is assaulting the ERT people. Specifically, Deputy Demooy gets hit. Yes, that is from Mr. Trinidad’s piece. But Mr. Sanchez is throwing at the ERT team as well, and that’s why it says pipe and porcelain chips in his count.”
After retiring to deliberate, the jury gave the trial court three queries, one of which questioned the difference in the verdict forms from the jury instructions. Juror No. 2 explained: “On the resisting arrest charges, on the verdicts it specifies—I forget which one—but one of the defendants specifically resisting Hill and the other specifically resisting Demooy. But I know that the prosecutor was saying also like on the assault that they are charged individually for those specific deputies even if they didn’t—they weren’t actually the ones that hit them. So I think that’s where we are confused.” When Juror No. 2 asked why the defendants were charged with a specific deputy since the evidence did not “pan out” that way, the trial court responded, “I don’t know, and I can’t answer that and you should not speculate.” Juror No. 2 then stated, “But the question is the prosecutor told us it didn’t matter, the team sort of constituted the whole, but we never actually heard what the law was. So we are just taking her word for it. So we want it to be from you, the judge’s perspective. Is that law accurate?” The trial court replied that the People were giving the jury their theory, and if it had been in error, “I think I would have sustained an objection.” Juror No. 2 replied, “Okay.” The trial court told the jury members that they had to sort it out. When the jury retired, Trinidad’s attorney objected to the court telling the jury that the defense had an obligation to object if the prosecutor’s argument was incorrect. The trial court ultimately decided to change the verdict form in the resisting counts (counts 2 & 5) to read “a deputy” without further identification of the victim. The court did not amend the verdict forms on the assault counts (counts 1 & 4). Donald Calabria, Trinidad’s attorney, objected on the ground that the trial court was participating in jury deliberations. Welbourn argued that it was too late to change the verdict forms. Shortly thereafter, the jury reached guilty verdicts on all counts.
C. Relevant Authority
“‘An assault is an attempt to commit a battery. [Citation.] Assault with a deadly weapon is termed a “general intent” crime because it is not necessary to find a specific intent to cause a particular injury. What is required, however, is the general intent to willfully commit a battery, an act which has the direct, natural and probable consequences, if successfully completed, of causing injury to another. [Citations.] Intent to frighten or mere reckless conduct is insufficient. [Citation.]’” (People v. Lee (1994) 28 Cal.App.4th 1724, 1734; People v. Williams (2001) 26 Cal.4th 779, 788 [assault is a general intent crime and does not require a specific intent to injure someone].)
“Many cases illustrate the rule that a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based.” (People v. Burnett (1999) 71 Cal.App.4th 151, 165-166.) “‘Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1205; see also Cole v. State of Arkansas (1948) 333 U.S. 196, 201.) “Whether [a] defendant received constitutionally adequate notice that the prosecution was relying on a particular theory of guilt entails a resolution of a mixed question of law and fact that... is predominantly legal.” (People v. Cole, at p. 1205.) As such, it is subject to independent review. (Ibid.) The California Supreme Court has also stated, however, that a trial court has discretion to grant or to deny leave to amend an information, but must deny it if the defendant’s substantial rights would be prejudiced. (People v. Birks (1998) 19 Cal.4th 108, 129.) In the instant case, whether we apply a de novo standard of review or an abuse of discretion standard, the result is the same.
D. Analysis
We address each of Sanchez’s arguments regarding count 4 in turn. Sanchez also complains of suggested actions by the prosecutor and the trial court that were not implemented and we therefore do not address those arguments.
1. Prosecutor’s Acts
Sanchez’s first argument alleges prosecutorial error. Although he never uses the term “misconduct, ” we presume that is the essence of his allegation. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 823 [“the term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error”].) “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Sanchez contends that, through the actions of the prosecutor, he was denied his due process right to be informed in advance of trial and during trial of the specific charges against which he was obliged to defend. The prosecutor failed to plead the correct charges and made incorrect arguments, resulting in a charge in count 4 that was unintelligible and uncertain.
As we have noted, a defendant may not be prosecuted for an offense that was not shown by the evidence at the preliminary hearing. (People v. Burnett, supra, 71 Cal.App.4th at pp. 165-166.) Deputy Hill was the only deputy to testify at the preliminary hearing. He said he was one of at least four deputies advancing down the row—two shield deputies and two weapon-carrying deputies. He was partially protected by shields, and Deputy Demooy was behind the row of shield deputies, holding a video camera. Deputy Hill testified that as they formed their line, the inmates on the row began throwing items, primarily porcelain. Deputy Hill did not name any other deputies except for Sergeant Mendoza, who was giving the inmates continual orders to stop throwing items and to cooperate with commands.
Sergeant Mendoza gave the order to fire the.40-millimeter less lethal weapon at any hands that were holding porcelain or any other item that could harm the deputies. After Deputy Hill fired the first round, all of the inmates except Sanchez and Trinidad stopped throwing items. Deputy Hill stated that Sanchez and Trinidad continued to throw items “at us.” (Italics added.) Deputy Hill said that the items thrown at the deputies consisted of pieces of porcelain and, as the deputies were advancing, a pipe thrown by Sanchez. Sanchez’s attorney asked Deputy Hill if he had seen any deputies taking defensive action against Sanchez. Deputy Hill replied that they used shields, and they fired stinger rounds at his hand.
This testimony provides a basis for charging Sanchez with an assault with a deadly weapon on Deputy Demooy. As the jury was instructed, to find that Sanchez committed an assault with a deadly weapon upon Deputy Demooy, the jury had to find that Sanchez willfully performed an act with a deadly weapon that would directly and probably result in the application of force to a person while being aware of facts that would lead a reasonable person to realize that his act would directly and probably result in force being applied to someone. The jury also had to find that, when he acted, Sanchez had the present ability to apply force with a deadly weapon to a person. The instruction also told the jury that the People were not required to prove that the defendant actually hit someone. This is the standard CALCRIM jury instruction for the offense in count 4. (CALCRIM No. 875.) Deputy Demooy’s injury was caused by a piece of porcelain hurled by Trinidad, but the crime of battery upon Deputy Demooy was not charged against Sanchez. Because Deputy Hill testified at the preliminary hearing that Sanchez was hurling pieces of porcelain at the deputies, the instruction and the charge in count 4 were amply supported by the evidence presented at that hearing.
The jury was instructed on the offense of assault with a deadly weapon in count 4 with CALCRIM No. 875 in pertinent part as follows: “The defendant... Sanchez is charged in Count 4 with assault with a deadly weapon in violation of Penal Code section 245. [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] 2. The defendant did that act willfully; [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; [¶] [AND] [¶] 4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person. [¶]... The People are not required to prove that the defendant actually touched or hit someone.... [¶] No one needs to actually have been injured by defendant’s act....”
Thus, Sanchez was not denied the right to be informed in advance of trial and during trial of the charges against which he was obliged to defend. His attorney’s choice to focus on the fact that Deputy Demooy was hit by a piece of porcelain thrown by Trinidad was just that—a facile choice based on the testimony that it was Trinidad who actually struck Deputy Demooy. The fact that the prosecutor sought to amend the information in order to avoid confusion does not signify that the prosecutor pleaded incorrect charges or that she made incorrect arguments. The prosecutor’s arguments conformed to the jury instruction. Given the charge in count 4 and the nature of the offense charged, that count was not unintelligible to a reasonable jury, and the prosecutor did not engage in prejudicial misconduct.
2. Trial Court’s Acts
With respect to the trial court, Sanchez argues that its final ruling with respect to count 4—leaving the information as is but allowing the prosecutor to argue that the piece of porcelain did not have to hit anyone to be an assault—was tantamount to permitting an amendment to the information adding all of the ERT members as victims. Appellant had neither notice nor the opportunity to defend against this.
As we have stated, the prosecutor’s argument regarding the nature of the offense of assault was not incorrect. Therefore, the trial court’s ruling was not erroneous. As the jury was instructed, and under the facts of this case, Deputy Demooy did not have to be injured by Sanchez in order for Sanchez to be convicted of assaulting Deputy Demooy.
In People v. Lee, supra, 28 Cal.App.4th 1724, defendant Lee was convicted of the attempted murder of Young in count 1 and assault with a firearm against Green in count 2. (Id. at p. 1728.) Young was shot twice in the thigh when Lee fired at him and his group of friends. (Id. at p. 1730.) Green had been beside Young when the shots were fired. (Ibid.) Lee argued on appeal that his conviction for assault in count 2 should be reversed because the evidence showed only that he intended to shoot Young, and there was no evidence that he attempted to shoot Green. (Id. at p. 1734.) The Lee court stated that the jury could reasonably conclude that Lee intended to harm some or all of Young’s companions—not only Young. (Id. at p. 1735.) As in the instant case, “a defendant need not intend to commit violence against a specific victim to be guilty of an assault.” (Id. at p. 1736; see also People v. Tran (1996) 47 Cal.App.4th 253.)
The court in People v. Griggs (1989) 216 Cal.App.3d 734 (Griggs), where the defendant fired into a crowd of people, held that the naming of a particular victim is not an element of assault with a deadly weapon. (Id. at pp. 737, 742.) In construing the phrase “assault upon the person of another” from section 245, subdivision (a)(2), Griggs stated that, “[t]o understand what constitutes the ‘person of another’ for our purposes, we focus on the actions of the defendant. The victim’s... injury, or lack of injury are not elements which need to be proved or disproved. All that is necessary is that there is a victim; the characteristics of the victim are not critical elements of the offense. The law is seeking to punish the reckless disregard of human life, and what needs to be shown is that a human life was threatened in the manner proscribed in sections 245 and 240....” (Id. at p. 742.)
We find no error and, as in Griggs, we conclude that Sanchez’s right to due process was not violated. “There was no question which of [Sanchez’s] acts was the basis for the assault with the deadly weapon. The testimony at the preliminary hearing, combined with the information, clearly informed [Sanchez] of the charges he was facing and the facts underlying these charges.” (Griggs, supra, 216 Cal.App.3d at p. 743.) Sanchez was not surprised, and “there was sufficient specificity to bar any later prosecution for the same offense.” (Ibid.)
3. Claim That Verdict Based on Invalid Theory
Thirdly, citing People v. Guiton (1993) 4 Cal.4th 1116 (Guiton) and People v. Green (1980) 27 Cal.3d 1 (Green), Sanchez contends that the jury may have predicated the assault with a deadly weapon verdict on the legally insufficient theory that Sanchez did not have to do anything more than throw a piece of porcelain in order to be guilty in count 4. The jury could also have predicated its verdict on the legally sufficient theory of assault upon Deputy Demooy. According to Sanchez, the trial court’s advisement encouraged the jury to follow the prosecutor’s legally insufficient theory that any throw was sufficient, even though this act did not constitute the crime of assault. The advisement was thus constitutionally defective because it allowed a finding of guilt based on a legally insufficient theory, and it also allowed a verdict that did not require the jury to find each element of the charged crime by proof beyond a reasonable doubt.
In Guiton, the court addressed the issue of whether a conviction was reversible due to being based upon a jury instruction that either was factually unsupported or legally incorrect. In so doing, the court reconciled its own opinion in Green with the holding in Griffin v. United States (1991) 502 U.S. 46 (Griffin). (Guiton, supra, 4 Cal.4th at p. 1121.) Green stated that “when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (Green, supra, 27 Cal.3d at p. 69.) Griffin held that, although error based upon an incorrect legal theory required reversal, factual error did not, if another valid basis for conviction existed. (Griffin, supra, 502 U.S. at pp. 59-60.) Guiton harmonized Green and Griffin by observing that Griffin had distinguished between those cases in which a particular theory of conviction is legally inadequate and those in which the jury has been left the option of relying upon a factually inadequate theory, i.e., one that suffered from an insufficiency of proof. Guiton held that the former type of case is subject to the rule generally requiring reversal; the latter type does not require reversal if at least one valid theory remains. (Guiton, at p. 1128.)
Contrary to Sanchez’s assertion, the prosecutor did not assert that throwing porcelain at the wall or on the floor constituted an assault. When the prosecutor spoke about an assault occurring each time an item was thrown, it was clear that she meant thrown at the deputies, and she stated it in that manner numerous times, to the degree that there could be no doubt as to her meaning. The prosecutor explained that, “We know there were multiple throws by Mr. Sanchez, multiple throws by Mr. Trinidad, all at the deputies who are all in that unit.” And, “Any time that they threw a piece of porcelain or a pipe at those deputies, that’s an assault. Not at the wall, not just randomly in the air. Whenever they throw at someone who is that zone of danger.” And later, “If you believe that Mr. Trinidad threw a piece of porcelain at those deputies, if you believe that Mr. Sanchez [threw] a piece of porcelain at those deputies, that’s the 245. That is the assault with a deadly weapon. That’s what we are talking about.” This correctly describes the charged offense. (§ 245, subd. (a)(1).) Therefore, we conclude that the jury properly based its verdict on the offense charged—an assault with a deadly weapon upon Deputy Demooy, who was one of the deputies within range of the porcelain pieces.
4. Cumulative Error with Respect to Count 4
Lastly, Sanchez argues that the cumulative effect of the above-described errors violated his due process right of fundamental fairness. He maintains that reversal of count 4 is required. Having rejected appellant’s arguments in turn, we conclude there was no cumulative error requiring reversal of count 4.
In the particular context of this case, there was no denial of due process. Griggs stated that due process requires that a defendant be advised of the charges against him so that he may have a reasonable opportunity to prepare his defense and so that he may “plead the judgment as a bar to any later prosecution for the same offense.” (Griggs, supra, 216 Cal.App.3d at pp. 742-743.) As in Griggs, there was no question in the instant case regarding which of Sanchez’s acts formed the basis of the assault charge. The preliminary hearing adequately informed him of the charges he was facing in the context of the attack on Deputies Hill and Demooy in which he participated. He also participated in assaults upon other deputies in the skirmish line and behind it, but he was not charged with those. We conclude Sanchez’s rights to defend, to confront his victims, to the effective assistance of counsel, to a fair trial, and to due process were not violated.
II. Alleged Errors by Prosecutor and Trial Court Resulting in Count 5 Guilty Verdict
A. Arguments
Sanchez, joined by Trinidad, argues against the guilty verdict in count 5, which originally charged him with resisting an executive officer in violation of section 69 when he “unlawfully attempt[ed] by means of threats and violence to deter and prevent J. Demooy, ... from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty.” Trinidad was originally charged with resisting Deputy Hill in count 2. Sanchez makes several arguments, numbered V, VI, VII, and VIII in his opening brief, and we address each of his arguments in turn. As noted in the pertinent trial court proceedings described in the previous section, the trial court, in response to a jury query, amended the verdict forms in the resisting counts to read that Sanchez and Trinidad each resisted “a deputy” instead of Deputies Hill and Demooy in particular.
Section 69 provides in pertinent part that “[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable....”
Sanchez’s argument No. VIII, which alleges cumulative error, also refers to count 4, as discussed ante.
B. Relevant Authority
As noted in the previous section, a defendant has Sixth Amendment and due process rights under the state and federal Constitutions to receive adequate notice of the charges against him in order to have a meaningful opportunity to defend against them. (People v. Cole, supra, 33 Cal.4th at p. 1205.)
“The general framework within which criminal pleadings are amended is statutorily derived and has remained constant since 1911. [Citation.] Section 1009 authorizes amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination.” (People v. Winters (1990) 221 Cal.App.3d 997, 1005 (Winters).) Section 1009 provides in pertinent part that, “[t]he court... may order or permit an amendment of an... information, ... for any defect or insufficiency, at any stage of the proceedings....” (Italics added.) “[W]ith [the court’s] permission, amendment may be made at anytime prior to verdict or judgment.” (4 Witkin, Cal. Crim. Law (3d ed. 2000) Pretrial Proceedings § 212, p. 416.) However, if “the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.” (People v. Pitts (1990) 223 Cal.App.3d 606, 905.)
C. Analysis
1. Prosecution Tactics and Allegedly Incorrect Actions by Trial Court in Response
Sanchez again argues prosecutorial misconduct with respect to count 5. Sanchez asserts that there was no testimony at the preliminary hearing that he resisted Deputy Demooy under any theory of the offense. Also, at no time was Sanchez charged with violating section 69 as to any other deputy. Therefore, Sanchez argues, since he prepared his defense against the charged offense of resisting Deputy Demooy on the basis that there was no evidence to support an element of the offense, Sanchez was ambushed by the prosecutor’s tactics, which caused the court to erroneously instruct the jury that Sanchez was guilty if he resisted any deputy.
We apply these arguments to Trinidad as charged in count 2.
The trial court’s instruction on the resisting count was in pertinent part as follows: “Defendant Trinidad is charged in count 2 and defendant Sanchez is charged in count 5 with resisting an executive officer in the performance of that officer’s duty in violation of Penal Code section 69. To prove that a defendant is guilty of this crime, the People must prove that: 1. The defendant unlawfully used force or violence to resist an executive officer; 2. When the defendant acted, the officer was performing his lawful duty; and 3. When the defendant acted, he knew the executive officer was performing his duty.” (CALCRIM No. 2652.) The jury instruction itself did not name a particular deputy.
At the preliminary hearing, Deputy Hill testified that after the initial.40-millimeter round was fired, only Sanchez and Trinidad continued to throw items at the deputies. He stated that the deputies systematically approached each cell, and the sergeant commanded the occupant to approach the rear of the cell, put his hands behind his back, and submit to handcuffing. If the inmate obeyed the commands, the inmate was escorted off. If not, the extraction team did “what they needed to do.” Sanchez and Trinidad did not retreat to the rear of their cells, and they continued throwing items at the deputies. Because Sanchez did not cease throwing items and did not retreat to the rear of his cell, he was one of the inmates dealt with by the extraction team. These inmates were “hostile, uncooperative, aggressive inmates.” Deputy Hill specifically stated that Trinidad was taken out by the extraction team. Thus, the preliminary hearing testimony showed that Sanchez and Trinidad were resisting the deputies even though there was no evidence that they engaged in resisting Deputies Hill and Demooy alone, who were part of the team advancing down the row to make way for and protect the extraction team.
At trial, Deputy Hill specifically stated that Sanchez, who was in cell No. 12, was not cooperative. Sergeant Mendoza gave the order for the deputies in the front line to hold at cell No. 13 so that the extraction team behind them could extract Sanchez. Clearly Sanchez resisted with force, as attested to by the audio portion of the videos, in which the sounds of a violent struggle and the use of a Taser were evident. That struggle was the culmination of his failure to cooperate with the orders of the sergeant to stop throwing things and retreat to the rear of the cells. Thus, there was no ambush on Sanchez’s defense, since he was not surprised with a new charge not supported by the preliminary hearing and trial evidence. Trinidad behaved in a similar fashion.
We have viewed all the video contained in the CD’s marked as People’s exhibit Nos. 3, 4, 9-17, and 20-22.
Most of the prosecutor’s “tactics” that appellants find objectionable were suggestions by the prosecutor to the trial court regarding amending the information that did not materialize and are therefore not cognizable as issues on appeal. The prosecutor did argue to the jury that both defendants made it difficult for the deputies to perform their duties, by doing “everything that they did after causing the initial disturbance when the deputies came in and tried to quell it.” The prosecutor stated, “They had to be escalated to a point where a Taser was used.... And then it gets to actually entering the cell, multiple deputies in those tiny cells, to take these guys down. And they are still struggling. You hear it in the video, one of them, ‘Stop fighting, stop fighting.’” And later, “They resisted the executive officers as they were giving them commands to comply the same way other inmates had been.” The prosecutor’s arguments conformed to the evidence, and the trial court did not err in allowing the prosecutor to argue in this way.
The trial court’s act of changing the verdict form after the jury’s query was tantamount to an amendment to the charging document, which had named Deputy Demooy in count 5 and Deputy Hill in count 2. As we noted in the previous section, the particulars in this case were shown by the preliminary hearing transcript, and Sanchez and Trinidad received adequate notice. An information and a preliminary hearing transcript perform different functions—the role of notifying a defendant of “all the particulars of the crime charged” is left to the preliminary hearing transcript rather than the information. (People v. Pitts, supra, 223 Cal.App.3d at p. 905; see also Winters, supra, 221 Cal.App.3d at p. 1005 [a trial court correctly exercises its discretion when allowing an amendment to the information to properly state the offense at the conclusion of the trial]; 4 Witkin, Cal. Crim. Law, supra, § 217, p. 422 [“[Penal Code section] 1009 gives the widest possible authority: An amendment may be allowed for any defect or insufficiency. Thus, the statute is intended to give the district attorney the same broad powers to amend an information as he or she had to frame it in the beginning, namely, to charge any offense shown by the evidence”].)
In People v. Valles (1961) 197 Cal.App.2d 362, for example, the court held that the trial court did not err by allowing amendment of the information, after both sides had rested, by adding the names of three more narcotics in addition to the one already named in a count charging the defendant with violating Health and Safety Code section 11500. (People v. Valles, supra, at pp. 364-365, 371.) The evidence taken at the preliminary hearing included the possession by appellant of the narcotics that were added to the count, and no new count was added to the information. The Valles court stated that it was “difficult to see how any substantial right of appellant’s was prejudiced by the amendment, ” since he could not have been taken by surprise. (Id. at pp. 371-372.) Here, as in People v. Valles, no new counts were added, and the prosecutor did not stray from the evidence shown at the preliminary hearing.
In In re Man J. (1983) 149 Cal.App.3d 475 (Man J.), the minor was charged with vandalism of four cars belonging to S. Wagner, in violation of section 594. (Man J., at p. 478.) The evidence showed that the cars actually belonged to S. Wagner and other people. (Id. at pp. 478-479.) The juvenile court denied defense counsel’s motion to dismiss and amended the petition to reflect the facts supporting the charge. (Id. at p. 478.) The Man J. court stated: “Here, unlike [In re] Robert G. [(1982) 31 Cal.3d 437] and the other cases relied on by appellant, the petition was amended not to charge a new offense, but to change the factual allegations supportive of the offense charged.” (Man J., at p. 479.) By analogy to section 1009 in adult criminal proceedings, Man J. concluded that the juvenile court retains discretion to permit amendment of a petition to correct the factual allegations supportive of the offense charged when the nature of the charge remains unchanged. (Man J., at p. 481.)
In the instant case, moreover, the trial court was not without authority to re-instruct the jury in accordance with the amended verdict forms. (§ 1093, subd. (f) [trial judge may instruct jury members without any request from the parties on the law applicable to the case as the judge deems necessary for their guidance].) The trial court is obliged “‘to clear up any instructional confusion expressed by the jury.’” (People v. Giardino (2000) 32 Cal.App.4th 454, 465.)
We conclude the trial court was not led astray by any prosecution tactics and did not err or abuse its discretion. (People v. Cole, supra, 33 Cal.4th at p. 1205; People v. Birks, supra, 19 Cal.4th at p. 129.) Appellants were not denied their right to notice, nor the opportunity to defend. We note that both defense attorneys’ arguments regarding the resisting counts related to their clients’ actions with the extraction team. Appellants were also not denied the right to confrontation, the right to effective assistance of counsel, and the right to due process under the Sixth and Fourteenth Amendments to the federal Constitution when the trial court amended the charges to conform to proof.
2. Claim that the General Verdict Rested on Legally Insufficient Theories
Appellants argue that the prosecutor’s theory that they resisted or delayed deputies because they used profanity rested on unconstitutional grounds within the meaning of Stromberg v. California (1931) 283 U.S. 359, 367-368 [When first clause of statute found to be invalid on its face as unconstitutional in violation of right to free speech, and it cannot be determined if conviction rested on that clause, the conviction must be set aside].) Appellants also contend that the prosecutor improperly argued that acts occurring before any deputy arrived on the row—such as flooding the row and throwing trash on the floor of the row—were part of the crime of resisting, when these acts did not, in fact, state a crime. According to appellants, because the trial court substituted “a deputy” in place of Deputy Demooy’s name (and in place of Deputy Hill’s name for Trinidad) and instructed the jury that any deputy would do for the deputy against whom each of them resisted, and because it advised the jury that the prosecutor’s theories of the law were correct, it is impossible to ascertain whether the jury based its guilty verdicts on one of the prosecution’s invalid theories. Therefore, the convictions cannot stand.
The record does not support appellants’ argument that the prosecutor presented the use of profanity as a theory of how they resisted. The prosecutor was describing to the jury the atmosphere in which the events occurred. The profanity was circumstantial evidence of appellants’ lack of cooperation and resistance to the deputies, in a situation where their being taken into custody was not visible on the videos (although it was certainly audible) and was not seen by the testifying deputies. As the prosecutor stated, “You hear the profanity from [cell No.] 12 and you hear the struggle. Then they even resort to getting out the Taser. They keep bringing it in because he won’t submit to the authority. He is already there. He keeps struggling.”
We believe the prosecutor’s comments on the water and trash in the row were similarly employed. As with the mention of profanity, the prosecutor could reasonably point this out to the jury as circumstantial evidence of Sanchez’s and Trinidad’s lack of cooperation that ultimately led to their violent resistance to being taken into custody and led out of the row. Furthermore, the jury was instructed that to show Sanchez and Trinidad were guilty of a violation of section 69, the People had to prove that they unlawfully used force or violence to resist an executive officer and that at the time they acted, the officer was performing his lawful duty, and they knew the executive officer was performing his duty. (CALCRIM NO. 2652.) Between the audio portion of the video and the testimony of the deputies, the jury had ample grounds to reasonably conclude that the People had proved the elements of the offense. The verdicts finding appellants guilty of resisting in violation of section 69 clearly rested on a legally sufficient theory.
3. Cumulative Effect of Error on Count 5
Sanchez, joined by Trinidad, contends that the effect of prosecutorial and judicial error with respect to count 5 had the effect of denying effective assistance of counsel, since the charge was amended during deliberations when it was too late to prepare a defense. Sanchez again argues that it is impossible to determine the theory on which the verdict was based. He claims that the shotgun approach resulting from correction of the prosecutor’s errors so infected the trial as to deny appellants due process with respect to count 5. As we have stated, we do not agree with appellants that the prosecutor presented to the jury several theories on which to base a conviction for resisting an executive officer. Appellants were on notice as to the content of the violations of section 69 by their conduct of resisting the officers as testified to by Deputy Hill at the preliminary hearing. We conclude there was no violation of due process with respect to count 5.
4. Cumulative Prosecutorial and Judicial Error in Both Counts 4 and 5
Sanchez, joined by Trinidad, asserts that in light of the jury’s query regarding the prosecutor’s argument versus the verdict forms and instructions, appellants probably would have been acquitted of counts 4 and 5 absent the court’s interventions, which were caused by the prosecutor’s blunders. They allege that in attempting to correct the pleading errors, the trial court became a second prosecutor and ambushed the defense. According to Sanchez, the result is offensive to any concept of fundamental fairness under the Fourteenth Amendment as articulated in Jackson v. Virginia (1979) 443 U.S. 307, 324 [an applicant is “entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt”] and In re Winship (1970) 397 U.S. 358, 364 [“the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”].
As we have stated, we believe the lengthy discussions among the trial court, the prosecutor, and the defense attorneys, which Sanchez quotes and analyzes at length, and to which the jury members were not privy, serve only to muddy the waters of the issues on appeal. After the jury presented its query to the trial court, the jury was given the proper instruction to perform its duties. We have determined that the evidence taken at the preliminary hearing gave appellants adequate notice of the charges against which they had to defend. The trial court did not err in its amendment to the charge in count 5 during jury deliberations. There is no cumulative error.
III. Trial Court’s Refusal to Instruct on Simple Assault as a Lesser Included Offense of Assault with a Deadly Weapon
A. Arguments
Trinidad argues that the trial court erred by allowing the jury to be presented with an all-or-nothing choice when reaching a verdict in count 1, assault with a deadly weapon. Trinidad, joined by Sanchez, asserts that the lesser included offense instruction was warranted because a piece of porcelain is not an intrinsically dangerous or deadly weapon.
B. Relevant Authority
“‘A criminal defendant has a constitutional right to have his or her jury determine “every material issue presented by the evidence” and this includes the right, where appropriate, to have the jury instructed on lesser included offenses.’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 51.) “[T]he trial court must give ‘“‘instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’”’ [Citation.] ‘As our prior decisions explain, the existence of “any evidence, no matter how weak” will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is “substantial enough to merit consideration” by the jury. [Citations.] “Substantial evidence” in this context is “‘evidence from which a jury composed of reasonable [persons] could... conclude[ ]’” that the lesser offense, but not the greater, was committed.’ [Citation.]” (People v. Romero (2008) 44 Cal.4th 386, 402-403.) We review de novo an alleged failure of the trial court to instruct on an uncharged lesser included offense. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
C. Analysis
Counsel for Trinidad asked the court to give an instruction on simple assault, but the trial court refused, stating that “this is either an assault with a deadly weapon or it’s not an assault.” Trinidad urges that the trial court prejudicially erred because a piece of porcelain is not an intrinsically dangerous or deadly weapon. He states that the trier of fact must determine if an object not inherently dangerous has become so, and the type of injury inflicted is one factor to consider in making this determination. He points out that Deputy Hill was only bruised and did not require medical attention.
Section 240 defines a simple assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” Under the facts of this case, the trial court was correct in ruling that the offense committed upon the deputies by Sanchez and Trinidad was either an assault with a deadly weapon or it was not an assault. There was no other manner in which an assault could be seen to have been committed by appellants other than by their throwing the jagged pieces of porcelain. They had no other way to commit a violent injury on the ERT deputies under the circumstances of this case.
As the jury was instructed, a “deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” (Italics added.) (CALCRIM No. 875.) In the case of In re Jose R. (1982) 137 Cal.App.3d 269, for example, a straight pin placed in an apple and offered to a potential victim was found to be a deadly weapon substantial enough to sustain a charge of assault with a deadly weapon. (Id. at pp. 275-276.) In People v. Martinez (1977) 75 Cal.App.3d 859, 864, a beer bottle hurled at police was considered to be a deadly weapon. The nature of an object, the manner in which it is used, and all other relevant facts may be considered by the trier of fact in determining whether it is a deadly weapon. (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) “Objects which are not inherently dangerous but which have been found to be a deadly weapon include ‘a pillow...; an automobile...; a large rock...; a razor blade...; [and] a fingernail file.’ [Citation.]” (People v. Montes (1999) 74 Cal.App.4th 1050, 1054 [finding a three-foot chain capable of producing and likely to produce great bodily injury in the manner it was used]; see also People v. Graham (1969) 71 Cal.2d 303, 327-328 [evidence of a defendant’s intent to use an object as a deadly weapon may establish it as such].)
In this case, the pieces of porcelain that Sanchez and Trinidad threw were jagged. The record shows that the jury was shown several pieces of porcelain with sharp edges that came from the assault. One piece measured approximately seven inches by five inches and another three inches by three inches. Deputy Hill testified that, when broken, porcelain has “very, very sharp edges.” The jury was shown photographs of other porcelain pieces, which they had an opportunity to examine during deliberations. Given the fact that these pieces were hurled with force, and were capable of bruising and cutting the skin through the thick uniform pants worn by the deputies, it is clear that they were dangerous. Indeed, the piece that hit Deputy Demooy actually ricocheted off the wall—reducing its velocity and force—before hitting him and cutting his knee. Clearly, the manner in which these heavy and sharp-edged missiles were used establishes the “deadly weapon” element of the offense, and the trial court correctly refused the jury instruction on the lesser included offense, since a simple assault was not supported by the evidence.
The jury was told that a deadly weapon was one that was inherently dangerous or that was dangerous (likely to cause great bodily injury) because of the way it was used.
IV. Insufficiency of the Evidence to Support the Verdict in Count 2; Trial Court’s Alleged Failure to Stay the Sentence in Count 2
A. Arguments
Trinidad contends in his arguments numbered II and III that, to the extent his conviction for violating section 69 (resisting an officer) was based on his actions after the deputies entered his cell, there was no evidence he used any force or violence against the deputies. Sanchez joins in this argument with respect to himself. Trinidad and Sanchez also contend that, since all of their actions before the deputies entered their cells are the same actions that the prosecutor used to describe the assault on the deputies, the sentences for resisting in violation of section 69 should have been stayed under section 654.
Section 654 provides that “[a]n 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.”
B. Relevant Authority
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
C. Analysis
There was sufficient evidence presented at trial to show that Trinidad and Sanchez used force or violence against the deputies who entered their cells. Deputy Hill testified that Trinidad was at the rear of his cell barricaded in a cubbyhole and holding his mattress in front of him when the skirmish line arrived at his cell. The extraction team deputies fired the.40 millimeter less lethal weapon at Trinidad inside the cell, but he still did not comply with instructions. The extraction team made entry and fired a sting ball. Trinidad still refused to comply with instructions, but rather approached the deputies with his mattress. When the skirmish line had moved up to the next cell, a member of the extraction team was heard to say, referring to Trinidad, “‘Get him hooked up and stand him up.’” Deputy Demooy saw Trinidad in a fight stance when the deputies approached the cells. He appeared ready to fight the deputies. A Taser had to be used on Trinidad.
A portion of the videos shown to the jury showed the red helmets of the extraction team preparing to enter cell No. 12, Sanchez’s cell, to extract him. A Taser had to be used by the extraction team in cell No. 12 as well. Sanchez also barricaded himself behind a mattress to block the.40 millimeter shots. Deputy Demooy saw Sanchez in a fighting stance with a closed fist and one leg back, similar to a boxer’s fighting stance.
The audio portions of the CD’s clearly evidence a violent struggle, including the use of a Taser, as the extraction teams attempted to take Sanchez and Trinidad into custody. The jury was entitled to infer that these measures would not have been necessary if appellants had not used force in resisting. (See People v. Brigham (1979) 25 Cal.3d 283, 310 [“[j]urors are presumed to have common sense”].) Because we believe this act of resisting, which was separate from the assaults committed by throwing porcelain at the deputies, was sufficient to sustain the conviction in counts 2 and 5, we do not believe section 654 prohibits Trinidad’s and Sanchez’s punishment for these counts. Trinidad’s and Sanchez’s separate acts that constituted resisting inside their cells do not fall under the rubric of section 654.
V. Trial Court’s Failure to Stay Sentence for Violations of Section 4502
A. Arguments
Trinidad and Sanchez contend that the sentence imposed in count 3, possessing or making a weapon in a penal institution in violation of section 4502, subdivision (a) must be stayed pursuant to section 654 because it was not separate from the assault in count 1. They claim there was no evidence that suggested they broke the sinks and possessed the porcelain pieces before they and the others began throwing them into the row as part of the disturbance, and the assault was no more than a continuation of the disturbance.
Section 4502, subdivision (a) provides in pertinent part that “[e]very person who, while at or confined in any penal institution, ... possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon, ... or sharp instrument, ... is guilty of a felony and shall be punished....”
B. Relevant Authority
“‘The “act” necessary to invoke section 654 need not be an act in the ordinary sense that it is a separate, identifiable, physical incident, but may be “a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’” [Citations.]” (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford) [staying separate punishment for possession of a firearm by a felon when he wrested a peace officer’s gun from him and fired shots at the officer, resulting in a separate conviction for assault with a firearm].)
“‘[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the [weapon] has been held to be improper where it is the lesser offense.’ [Citation.]” (Bradford, supra, 17 Cal.3d at p. 22.)
C. Analysis
As Trinidad concedes, the sinks were broken before the deputies in the ERT entered the row. Although appellants may have also enjoyed making a mess and a disturbance by breaking up their porcelain sinks, they clearly made use of the pieces by subsequently employing them as deadly weapons when the deputies arrived on the row. It is of no significance that appellants did not possess the porcelain pieces for a long period of time before the assaults or that they did not take them to a different location than where the missiles were created. In this case, unlike the cases Trinidad and Sanchez cite, the creation of the porcelain weapons was “‘antecedent and separate’” from their use as weapons being hurled at the skirmish line. (People v. Bradford, supra, 17 Cal.3d at p. 22.) Appellants’ arguments are without merit.
DISPOSITION
The judgments are affirmed.
We concur: DOI TODD, J., CHAVEZ, J.