Opinion
E064552
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES ROBERT STANFORD, JR., Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1400184) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed as modified in part, reversed in part. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
The jury convicted defendant James Robert Stanford, Jr., of corporal injury on a dating partner (Pen. Code, § 273.5, subd. (a), count 1), assault by means likely to produce great bodily harm (§ 245, subd. (a)(4), count 2), and simple battery (§ 242, count 3). The jury found as to counts 1 and 2 that defendant had two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and one prior serious felony conviction (§ 667, subd. (a)(1)). Defendant was sentenced to a total term of 30 years to life in state prison.
All further statutory references are to the Penal Code.
Defendant contends that: (1) the concurrent term imposed for count 2 should be stayed pursuant to section 654 because the assault was part of an indivisible course of conduct with the corporal injury for which he was already sentenced in count 1; and (2) the prior serious felony conviction sentence enhancements imposed in counts 1 and 2 should be stricken because the current convictions are not serious felonies. We requested supplemental letter briefs to determine whether the conviction for misdemeanor battery in count 3 should be reversed because battery is a lesser included offense of corporal injury on a dating partner. Respondent concedes on all three claims and we agree.
Defendant originally argued that the concurrent term imposed for count 3 should be stayed, as with count 2. However, following a request for supplemental briefing from this Court, defendant now requests that the conviction in count 3 be stricken altogether, as explained.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the night of January 14, 2014, defendant argued with his girlfriend, and got physical. Defendant kicked his girlfriend in the ribs, knocking her down. Once she was on the ground, defendant kicked her repeatedly in the ribs and upper torso, "like a soccer ball." The girlfriend curled up in the fetal position and screamed, " '[M]y ribs, he's going to kill me.' " Defendant walked away from his girlfriend, who then got up and followed him. The girlfriend asked defendant to stop and help her. Defendant responded by punching her in the face or shoulder with a closed fist. The girlfriend fell to the ground and lay still for 30 to 40 seconds. Defendant kicked his girlfriend repeatedly in the ribs until the police arrived.
The information charged defendant with corporal injury on a dating partner (§ 273.5, subd. (a), count 1), assault by means likely to produce great bodily harm (§ 245, subd. (a)(4)), count 2), and battery with serious bodily injury (§ 243, subd. (d), count 3). As to counts 1 and 2, it was alleged that defendant personally inflicted great bodily injury on the girlfriend in circumstances involving domestic violence. (§ 12022.7, subd. (e).). It was also alleged that he had two prior strike convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and that he had previously been convicted of a serious felony within the meaning of section 667, subdivision (a)(1).
The court bifurcated the trial of the prior conviction allegations from the guilt phase. Defendant was tried by a jury and was found guilty as charged in counts 1 and 2. As to count 3, the jury found him not guilty of battery with serious bodily injury, but guilty, instead, of simple battery as a lesser included offense. (§ 242.) The jury found not true the allegation that he inflicted great bodily injury in counts 1 and 2.
In a separate trial of the prior conviction allegations, the jury found they were true. Subsequently, the court denied defendant's motion to strike the prior strike convictions, and to reduce the prior felonies to a misdemeanor. Defendant was sentenced to 25 years to life for count 1 as a third strike conviction, with a concurrent term of 25 years to life for count 2. The court sentenced defendant to a consecutive term of five years for the prior serious felony conviction. The court sentenced defendant to a term of 180 days in jail for count 3, with credit for 180 days served.
II
DISCUSSION
1. Imposition of Concurrent Sentences for Counts 1 and 2 Violate Section 654
Defendant contends that section 654 precludes sentencing him separately for the corporal injury to a spouse or cohabitant in count 1 and the aggravated assault in count 2 because they represented a single course of conduct, such that the sentence in count 2 should have been stayed. The People concede, and we agree, that the concurrent sentence in count 2 should be stayed.
Section 654 provides that an act or omission punishable in different ways shall be punished for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one. It bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Mosely (2008) 164 Cal.App.4th 1598, 1603.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (People v. Conners (2008) 168 Cal.App.4th 443, 458; see People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
The imposition of concurrent sentences is precluded by section 654 because the defendant is deemed to be subjected to the term of both sentences, although they are served simultaneously. (People v. Jones (2012) 54 Cal.4th 350, 353; People v. Miller (1977) 18 Cal.3d 873, 887.)
Here, the prosecutor argued that defendant's multiple acts, including the kicking of the victim, constituted the force likely to produce great bodily injury without specifying a particular act. The prosecutor also argued that all three types of injury necessary for a guilty verdict on count 1 (the corporal injury to a dating partner) were present: bruising to the face, pain in and bruises on the ribs, bruises on the arm, and being knocked unconscious, satisfied the elements of the first count.
As to count 2, the prosecutor again mentioned the various acts by defendant, including the kicking of the victim after she was unconscious, as satisfying the elements of the aggravated assault count. Neither the probation report nor the court mentioned separate objectives. If the People had elected to pursue the separate counts as discrete acts, a unanimity instruction would have been required because the testimony revealed numerous acts which allegedly constituted three discrete crimes. (People v. Grimes (2016) 1 Cal.5th 698, 727.) A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. (People v. Beardslee (1991) 53 Cal.3d 68, 92.) However, no unanimity instruction was given.
Given the absence of separate objectives, and the fact that numerous acts were described by the witness's testimony, all of which were urged as supporting guilty verdicts on both counts 1 and 2, it cannot be determined whether the jurors agreed unanimously that the same acts constituted the given counts. Where the record does not support a finding of separate objectives for the charges, we must agree with the parties that the offenses were committed during an indivisible course of conduct with a single criminal objective. The concurrent sentence imposed for count 2 should be stayed.
2. The Prior Serious Felony Conviction Enhancements Should Be Stricken
Defendant contends that the court erred when it imposed five-year prior serious felony conviction enhancements pursuant to section 667, subdivision (a)(1), because the crimes of which defendant was convicted are not serious felonies, as defined by section 1192.7, subdivision (c). He argues that an enhancement for a prior serious felony conviction only applies when the current offenses are serious felonies (§ 667, subd. (a)(1)), but neither of the crimes listed in counts 1 or 2 are serious felonies. The People concede, and we agree, that the two five-year enhancements to counts 1 and 2 should be stricken.
Section 667, subdivision (a)(1), mandates a five-year sentence enhancement where the defendant is convicted of a "serious felony" and has previously been convicted of a prior "serious felony." The statute applies only if the current conviction itself is a serious felony, as defined in section 1192.7, subdivision (c). (§ 667, subd. (a)(4); People v. Taylor (2004) 118 Cal.App.4th 11, 22 (Taylor).) Neither corporal injury on a dating partner nor assault by means likely to produce great bodily harm are included in the list. (Id. at p. 22-23 [defendant convicted of battery with serious bodily injury and corporal injury to a cohabitant, but neither qualified as serious felony because the jury did not make a true finding on the personal infliction of great bodily injury].)
It is true that section 1192.7, subdivision (c)(8), defines other crimes as serious felonies by referring to conduct rather than a specific crime. (People v. Reed (1996) 13 Cal.4th 217, 223; see People v. Murphy (2001) 25 Cal.4th 136, 145.) However, under those conduct-based definitions, a felony that is not listed as a serious felony as a matter of law may be found to constitute a serious felony if the prosecution properly pleads and proves the facts necessary to establish the defined conduct. (People v. Equarte (1986) 42 Cal.3d 456, 465; see Taylor, supra, 118 Cal.App.4th at p. 23.) Thus, by pleading and proving a separate sentence enhancement, such as an enhancement for personally inflicting great bodily injury, the prosecutor may satisfy this burden. (Id. at p. 23.)
In People v. Johnson (2016) 244 Cal.App.4th 384 (Johnson), the reviewing court concluded that the holding of Taylor did not apply, because the jury had convicted the defendant of violating section 243, subdivision (d). There, the court acknowledged that battery with serious bodily injury (§243, subd. (d)) was not listed in section 1192.7, subdivision (c). However, because the jury had not expressly rejected an enhancement pursuant to 12022.7, the court followed the holding of People v. Arnett (2006) 139 Cal.App.4th 1609, 1613, finding the elements of battery with serious bodily injury were the legal equivalent of a finding of great bodily injury. (Johnson, supra, at p. 395.) Here, the acquittal on the greater offense of battery with serious bodily injury forecloses a similar conclusion. --------
In the present case, the jury did not find the enhancement allegation to be true, so the conduct-based definition of personal infliction of great bodily injury was not proven. Without such a finding, the absence of the crimes of which defendant was convicted from the list of crimes qualifying as serious felonies (§1192.7, subd. (c)) means that defendant's current offenses were not serious felonies for which an enhancement pursuant to section 667, subdivision (a)(1), could be imposed.
The imposition of the five-year term for the enhancements pursuant to section 667, subdivision (a)(1), was error. We will modify the sentence to strike the enhancements.
3. The Conviction for Battery in Count 3 Should Be Reversed Because a Defendant May Not Be Convicted of Both the Greater and Lesser Included Offenses
We requested supplemental briefing to determine whether the defendant could be properly convicted of simple battery, as charged in count 3, where battery is a lesser offense included within the greater offense of corporal injury to a dating partner. In response to our request, defendant submitted a letter brief contending that because battery is a lesser included offense of corporal injury on a dating partner, defendant's conviction in count 3 for battery should have been stricken. The People concede. The conviction in count 3 should be reversed.
Although section 954 allows the People to charge " 'different statements of the same offense,' " it is well-settled that multiple convictions may not be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega), citing People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on a different point in People v. Vidana (2016) 1 Cal.5th 632, 650-651.) Where a defendant has been convicted of two offenses and the elements of one are necessarily included in the second offense, both convictions may not stand and the conviction in the lesser included offense must be stricken. (Ortega, at pp. 692-693, clarified by People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.)
Both simple assault (People v. Van Os (1950) 96 Cal.App.2d 204, 206) and misdemeanor battery (People v. Stewart (1961) 188 Cal.App.2d 88, 90) are included in a prosecution of section 273.5. (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.) Because battery is a necessarily included offense of willful infliction of corporal injury on a dating partner, a defendant cannot stand convicted of both crimes for the same act. (Id. at p. 952; see People v. Hamlin (2009) 170 Cal.App.4th 1412, 1457 [spousal battery lesser included of corporal injury on a cohabitant].)
Here, defendant was originally charged with battery with serious bodily injury (§ 243, subd. (d)) in count 3. However, the jury found defendant not guilty of that crime and convicted him, instead, of the lesser offense of simple battery. Insofar as simple battery is a lesser offense included in the crime of which defendant was convicted in count 1, the conviction on count 3 must be reversed.
III
DISPOSITION
The judgment is modified to: (1) stay the sentence on count 2 (assault by means likely to produce great bodily harm) pursuant to section 654; and (2) strike the five-year enhancements imposed pursuant to section 667, subdivision (a)(1), in counts 1 and 2 (corporal injury on a dating partner and assault by means likely to produce great bodily harm). The conviction on count 3 (simple battery) is reversed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. FIELDS
J.