Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA312287. Bob S. Bowers, Jr., Judge.
Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Jason Tran, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Michael Smith appeals the judgment entered following his conviction by jury of assault with force likely to produce great bodily injury in which Smith personally inflicted great bodily injury and battery with serious bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a), 243, subd. (d).) The trial court found Smith had a prior serious felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1) and sentenced him to a term of 14 years in state prison.
Subsequent unspecified statutory references are to the Penal Code.
We affirm the judgment as modified to stay the concurrent term imposed for battery with serious bodily injury and to strike a $20 DNA penalty assessment. In so doing, we reject Smith’s claim of instructional error and insufficient evidence to support the prior conviction allegations.
FACTUAL BACKGROUND
1. The People’s evidence.
In August of 2006, 61-year old Robert Hamby lived with three roommates in a two-bedroom apartment on Virgil Street in Los Angeles. Hamby’s roommate was Helen Montoya, now deceased. The other bedroom was occupied by Mary Peters and the defendant, Smith. Hamby had lived on Virgil Street for approximately ten years; Peters had been there for about eight years; Smith had been living there for approximately two years. Hamby and Peters had been placed in the apartment through the Portals Dual Diagnosis program.
On the evening of August 20, 2006, Hamby noticed someone had eaten some of his ice cream. He leaned into the bedroom occupied by Smith and Peters and asked through the open door if Smith had eaten Hamby’s ice cream by mistake. Smith and Peters said no. Hamby did not enter Smith’s room because Smith was particular about that.
The next morning, Hamby was playing computer games in the living room when Smith approached him from behind and angrily cursed at Hamby for entering his room. Smith accused Hamby of stealing ice cream and was “just cussing up a storm.” Hamby tried to go to his bedroom but Smith, who weighed in excess of 500 pounds, pinned Hamby against the wall and belly bumped Hamby backwards. In fear, Hamby tried to push Smith under his armpits. Smith pushed Hamby to the ground and began to punch him repeatedly in the face. Hamby counted at least five punches to the face before Hamby lost consciousness. Hamby awoke in the hospital.
Hamby is six feet two inches tall and he weighed 205 pounds in August of 2006.
As a result of this attack, Hamby required 25 stitches to his face. For approximately two months after the attack, Hamby had migraine headaches, he was dizzy all the time, he suffered short-term memory loss and he was very fatigued. Hamby, who takes about five psychiatric medications, is more depressed now that he was before.
Jamaal Samad, a previous resident of the apartment who had been roommates with Hamby, Peters and Montoya, was visiting the apartment on the morning of August 21, 2006. Samad was talking to Montoya in her room when he heard Smith say, “[D]on’t come in my room again without knocking or I will kick your mother fucking ass.” Hamby, who Samad described as easy going, tried to brush it off but Smith persisted with profanity and threats. Hamby finally said, “well just hit me then, I will call the police.” Two seconds later, Samad heard “scuffling.”
Samad “immediately” ran into the living room and saw that Smith had pinned Hamby on the ground and was delivering blows to the left side of Hamby’s head with a closed fist. Smith hit Hamby a dozen or more times with very quick blows. “It was like a jack hammer.” Samad grabbed Smith around the neck and Montoya grabbed Smith’s left arm. Smith landed a few more blows then relented. There was a three-inch gash on Hamby’s head. After the incident, Smith asked Samad, “was I wrong?” Samad admitted he did not see Hamby go to the ground.
Peters testified she was awakened by the angry voices of Smith and Hamby at her bedroom door. Hamby was trying to enter his bedroom but was being blocked by Smith. A pushing match developed with their stomachs. Peters did not see Hamby fall but she saw Smith, who weighed approximately 520 pounds at the time, straddling Hamby and striking him in the face with his fist more than four times while Hamby’s arms were pinned at his side. Montoya and Samad entered the living room and pulled Smith from Hamby.
2. Defense evidence.
Smith testified in his own defense that, on the evening of August 20, 2006, he was in his bedroom watching television. Peters was asleep in her bed. Hamby opened the door and entered the room. It appeared to Smith that Hamby was “kind of shocked” to find Smith awake. Hamby then said someone ate his ice cream. Smith went to the refrigerator to investigate. Hamby showed Smith there was “a fingernail scratch” on his ice cream. Hamby punched Smith on the arm and said if Smith ate his ice cream, he should buy him a new one. Smith denied he had eaten the ice cream. Hamby then woke Peters and asked if she ate the ice cream. When Peters denied she had, Hamby stomped from the room and screamed, “There is a thief in this house.” Smith closed his door and went to sleep.
The next morning, Smith went to the living room and told Hamby, who was playing computer games, to knock and wait until someone answers before entering his room when the door is shut. Hamby did not respond and Smith had to repeat himself several times. When Hamby did turn, he looked at Smith strangely and said, “Oh yeah, okay.” Montoya shook her head disapprovingly. At that point, Hamby became belligerent. Hamby “belly bumped” Smith and dared Smith to hit him. Smith said, “No, you hit me.” Hamby punched Smith in the left eye and then in the right eye, momentarily blinding Smith. Hamby then struck Smith on the left side of his head above the ear and hit Smith twice “in the nuts.” Smith grabbed Hamby by the shoulder but Hamby collapsed and Smith landed on top of Hamby, who continued to strike Smith in the chest and body.
When Smith regained his vision, he blocked one blow and was about to strike Hamby when Montoya grabbed his arm. Hamby punched Smith in the belly and tried to hit him again in the nuts. Smith stood and fended Hamby off, then started to slap Hamby. Hamby blocked the blows and threw punches at the same time. Smith hit Hamby’s hand very hard knowing Hamby’s hand would hit Hamby in the face. Samad then came into the room and put Smith in a choke hold. While Samad and Montoya held Smith, Hamby struck him in the chest.
3. Probation violation hearing; court trial on prior conviction allegations; sentencing.
After a jury convicted Smith as charged, the trial court found Smith in violation of probation in case No. BA274783 by reason of his conviction in the current case. The trial court indicated it had read and reviewed the court file in case No. BA274783, which reflected that Smith was convicted of violating section 246 in February of 2005.
The trial court then conducted a court trial on the prior conviction allegations, which were based on Smith’s conviction in case No. BA274783. An identification technician testified Smith’s fingerprints matched those of the defendant in case No. BA274783. The People asked the trial court to take judicial notice of “two things” in case No. BA274783, a docket sheet dated April 15, 2005, showing the conviction of a violation of section 246 and the notation that the conviction constitutes a strike.
The trial court indicated it had reviewed the entire file in case No. BA274783 and concluded the People had shown the prior conviction to be a serious felony, thereby qualifying it as a strike and a serious felony within the meaning of section 667, subdivision (a)(1).
With respect to sentencing, the trial court sentenced Smith to three years for assault with force likely to produce great bodily injury, doubled on account of the strike, plus three years for the personal infliction of great bodily injury. The trial court also imposed a five-year enhancement under section 667, subdivision (a)(1). The trial court sentenced Smith to a concurrent middle term for assault with great bodily injury and imposed a $20 DNA penalty assessment pursuant to Government Code section 76104.7, subdivision (a).
ISSUES ON APPEAL
Smith contends the trial court erroneously failed to instruct the jury in the words of CALCRIM Nos. 224 and/or 225 and there was insufficient evidence to support the trial court’s finding that Smith’s prior conviction of violating section 246 qualified as a serious felony.
Smith also contends the sentence imposed for battery with serious bodily injury must be stayed and the $20 DNA penalty assessment imposed by the trial court must be stricken. The People concede these two points.
DISCUSSION
1. No instructional error appears.
Smith contends the trial court was obliged to give CALCRIM 224 and 225 (former CALJIC Nos. 2.01 and 2.02) because the evidence presented two distinctly differing versions of the altercation between himself and Hamby. Smith claims these instructions clarify and limit the permissible use of circumstantial evidence and should have been given to assist the jury to determine whether Smith’s belief in the need to defend himself against Hamby’s attack was reasonable. Smith notes neither Samad nor Peters saw the fight begin and the only available direct evidence indicated Hamby was the initial aggressor when he pushed Smith under his armpits in an attempt to move him. Smith argues the issue of self defense necessarily was determined by circumstantial evidence and, had the instructions been given, the jury might have concluded Smith reasonably believed he needed to defend himself. Smith concludes reversal is necessary because the error lightened the prosecutor’s burden of proving Smith did not act in self-defense.
CALCRIM 224. Circumstantial Evidence: Sufficiency of Evidence provides: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
CALCRIM 224 and CALCRIM 225 are alternative instructions. The trial court has a sua sponte duty to instruct the jury with CALCRIM 224 on the effect to be given circumstantial evidence when circumstantial evidence is substantially relied on for proof of guilt. (People v. Rogers (2006) 39 Cal.4th 826, 885; People v. Marquez (1992) 1 Cal.4th 553, 577; People v. Wiley (1976) 18 Cal.3d 162, 174; People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) CALCRIM 225 is the proper instruction to give where the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state. (People v. Cole (2004) 33 Cal.4th 1158, 1222.) There is no sua sponte duty to give either instruction when circumstantial evidence is merely incidental to and corroborative of direct evidence. (People v. Malbrough (1961) 55 Cal.2d 249, 250-251.)
Neither instruction was required in this case. The People presented direct evidence of Smith’s guilt. The jury’s choice between the two conflicting versions of the incident was not based on circumstantial evidence but a determination of the credibility of the witnesses. The trial court therefore had no sua sponte obligation to give CALCRIM Nos. 224 or 225.
We also reject Smith’s assertion that omission of these instructions reduced the People’s burden on the issue of self-defense. Other instructions given by the trial court informed the jury the People “have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty . . . .”
In sum, no instructional error appears.
2. Smith’s prior conviction of violating section 246 constituted a serious felony.
a. Facts related to the prior conviction in case No. BA274783.
Because Smith was on probation in case No. BA274783 at the time of the current offense, the record on appeal in this case includes a reporter’s transcript of the preliminary hearing in case No. BA274783. It indicates Smith had an argument with a former girlfriend in which she smashed the window of his car. As she walked away, Smith fired a shot. The former girlfriend testified the shot passed within 10 feet of her. The former girlfriend did not see Smith fire the shot but he was the only person in the street, the police found a gun in his car and, after his arrest, Smith admitted to a police officer that he fired 30 feet over her head.
Smith was charged with assault with a firearm and assault with a semi-automatic firearm in which he personally used a firearm (§ 245, subds. (a)(2), (b), 12022.5) and discharge of a firearm with gross negligence (§ 246.3).
On April 15, 2005, on the People’s motion, the trial court added a new count alleging a violation of section 246 and Smith pleaded no contest to that count. The trial court granted Smith probation on condition he spend 365 days in county jail.
b. Smith’s argument.
Smith contends the trial court erroneously found Smith’s prior conviction of discharging a firearm at an inhabited dwelling in violation of section 246 constituted a serious prior felony conviction within the meaning of the Three Strikes law and section 667, subdivision (a). Smith claims that, absent proof Smith personally used a firearm in the commission of the offense, the prior conviction does not qualify as a serious felony conviction. Smith asserts the People did not offer a reporter’s transcript of the change of plea or ask the trial court to take judicial notice of the file in case No. BA274783. (People v. Cortez (1999) 73 Cal.App.4th 276, 279-284.) Smith concludes that, because the facts underlying the prior conviction were not disclosed by the People’s proof, the prior conviction allegation must be set aside. Smith further contends retrial on this allegation would constitute a violation of the guarantee against double jeopardy.
c. Resolution.
To qualify as a “strike,” a prior conviction must be a “violent felony” as defined in section 667.5, subdivision (c), or a “serious felony” as defined in section 1192.7. (§§ 667, subd. (d), 1170.12, subd. (b).) Serious felonies include those felonies that are specifically enumerated in section 1192.7, as well as felonies in which the defendant personally uses a firearm in the commission of the offense. (§ 1192.7, subd. (c)(8); People v. Piper (1986) 42 Cal.3d 471, 476; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531.)
In 2000, Proposition 21 amended section 1192.7 to add to the list of specifically enumerated serious felonies the “discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246.” (§ 1192.7, subd. (c)(33).) Thus, a violation of section 246 currently qualifies as a serious felony even without proof the defendant personally used a firearm. (People v. Neely (2004) 124 Cal.App.4th 1258, 1266-1267.)
Because Smith’s offense was committed in 2005, after the amendment adding violations of section 246 to the list of “strike” felonies, the prosecution’s proof that Smith was convicted of a violation of section 246 is sufficient to prove the prior conviction allegations. (People v. James (2001) 91 Cal.App.4th 1147, 1151.)
Smith argues in the reply brief that Proposition 21 did not add a generic violation of section 246 to the list of serious felonies. Rather, it added only three of the six acts that can constitute a violation of section 246. Thus, now, as before Proposition 21, in order to prove that a violation of section 246 constitutes a serious felony, the People must present proof the defendant personally used a firearm.
This claim is meritless. Section 246 provides: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony . . . .” Proposition 21 amended section 1192.7 to add subdivision (c)(33), which added the “discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246” to the list of specifically enumerated serious felonies. (§ 1192.7, subd. (c)(33).)
Comparison of section 1192.7, subdivision (c)(33), and section 246 reveals the reference in section 1192.7, subdivision (c)(33), to the target structures as an “inhabited dwelling, vehicle or aircraft,” is a summary of the more detailed list of target structures in section 246. Section 246 may be committed by shooting at two different types of dwellings (“inhabited dwelling house” and “occupied building”), three types of vehicles (“occupied motor vehicle,” “inhabited housecar” and “inhabited camper”) or an occupied aircraft. Section 1192.7, subdivision (c)(33), groups these target structures by referring to them as an “inhabited dwelling, vehicle or aircraft.” Consequently, after Proposition 21, all violations of section 246 qualify as serious felonies.
Moreover, the record in case No. BA274783 reflects that Smith personally used a firearm in the commission of the offense. Thus, even if the amendment of section 1192.7 by Proposition 21 is overlooked, Smith’s conviction of violating section 246 qualified as a serious felony under section 1192.7, subdivision (c)(8), based on Smith’s personal use of a firearm.
Although the People did not ask the trial court to take judicial notice of the file in case No. BA274783, the trial court stated it had reviewed the entire record, which was before the trial court on the violation of probation, in connection with the court trial on the prior conviction allegations. As noted above, the transcript of the preliminary hearing showed that Smith confessed the personal use of a firearm. This evidence was sufficient to establish the truth of the prior conviction allegations. (People v. McGee (2006) 38 Cal.4th 682, 691-692 [the trial court may look to the entire record of conviction in determining whether a prior conviction constitutes a serious felony].)
Thus, the trial court committed no error in concluding Smith’s prior conviction of violating section 246 constituted a serious felony.
3. The term imposed on count two must be stayed.
Smith was convicted in count two of a violation of section 243, subdivision (d). The trial court imposed a concurrent term on count two, stating it believed that result was required under the Three Strikes law.
Smith contends the imposition of a concurrent term for this offense violates section 654. The People concede the point and it appears this concession is well taken. (People v. Sloan (2007) 42 Cal.4th 110, 116.) We therefore order the abstract of judgment modified to stay the term imposed on count two.
4. The $20 DNA penalty assessment must be stricken.
Smith contends the $20 DNA penalty assessment imposed by the trial court must be stricken. The People concede the point. It appears this concession is well taken. Due to recent statutory amendments, the DNA penalty assessment no longer applies to restitution fines, parole revocation restitution fines or court security fees. (Gov. Code, § 76104.7, subd. (c).) The defendant generally is entitled to benefit from amendments that become effective while his case is on appeal. (People v. Vieira (2005) 35 Cal.4th 264, 305-306.) Accordingly, we will order the abstract of judgment modified to delete reference to the DNA penalty assessment.
DISPOSITION
The judgment is ordered modified to stay the term imposed on count two and to delete reference to the $20 DNA penalty assessment. As so modified, the judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.
CALCRIM 225. Circumstantial Evidence: Intent or Mental State provides: “The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. [¶] An (intent/ [and/or] mental state) may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”