Opinion
D071201
11-20-2017
THE PEOPLE, Plaintiff and Respondent, v. ABDIEL SUAREZ, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, Felicity Senoski, and Daniel Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS280811) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, Felicity Senoski, and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Abdiel Suarez of one count of simple assault (Pen. Code, § 240) as a lesser offense of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 3). Suarez was also convicted of assault with a deadly weapon (§ 245, subd. (a)(1); count 4).
All further statutory references are to the Penal Code unless otherwise specified.
Suarez was charged as an aider and abettor to a separate assault on the same victim by a third person. --------
At sentencing, the trial court reduced count 4 to a misdemeanor. Suarez was placed on summary probation.
Suarez appeals contending his convictions for counts 3 and 4 violate the double jeopardy clause of the United States Constitution. He contends count 3 is a lesser included offense of count 4. As we will explain, count 3 involves an assault by Suarez in which he kicked the victim. Count 4 involves a separate assault by another person on the same victim using a baton. Although the counts involve the same conduct by Suarez, they are separate offenses involving two different assaults. The conduct produced two separate crimes, although multiple punishments could not be imposed in light of section 654. Accordingly, we will reject Suarez's contentions and affirm the judgment.
STATEMENT OF FACTS
The offenses in this case arose from a fight between two groups of people. There were multiple parties and multiple fights. Suarez does not challenge the sufficiency of the evidence to support his convictions. Given the narrow issue presented on this appeal, we will limit our discussion of the facts to those which relate to the assaults in counts 3 and 4.
During the affray, Suarez and at least two other men attacked the victim. The victim was hit with a bat and knocked to the ground. While the victim was on the ground, Suarez kicked him and a third person repeatedly struck the victim with a baton.
DISCUSSION
Suarez contends the offense in count 3 is a lesser included offense of count 4, since Suarez's conduct in kicking the victim supported the conviction in count 3 and was at least part of the basis for the jury finding that Suarez aided and abetted another in the assault using a baton. Suarez does not recognize his course of conduct made him responsible for two separate assaults, thus one is not the lesser of the other.
The People contend there were two separate assaults, thus the concept of lesser included offenses is not applicable in this case. Since the counts here are separate offenses, the double jeopardy clause does not bar multiple convictions arising out of the same actions.
A. Legal Principles
Section 954 permits the prosecution to charge multiple crimes arising from the same transaction, and permits convictions for those offenses. The principal exception to that rule is where one offense is a lesser included offense of the other. (People v. Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez); People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)
Under the double jeopardy clause, a person may not be twice placed in jeopardy for the same offense. In determining what constitutes the same offense we look to the elements of each offense. Two crimes may be the same offense if one of the offenses is wholly included within the other. However, if each crime has an element not included in the other, they are separate offenses. (Texas v. Cobb (2001) 532 U.S. 162, 172-173; Blockburger v. United States (1932) 284 U.S. 299, 304 (Blockburger); Brown v. Ohio (1977) 432 U.S. 161, 164.)
Where a person is convicted of more than one crime based on a single physical act, section 654 permits punishment for only one of the crimes. (People v. Kramer (2002) 29 Cal.4th 720, 722; People v. Corpening (2016) 2 Cal.5th 307, 316.)
B. Analysis
We begin our analysis by repeating our observation that this case involves two assaults, by two different people and are thus separate offenses.
The facts demonstrate that during the fight between two groups, the victim was knocked to the ground. He was surrounded by at least three people, including Suarez and a man named Porras. Suarez kicked the victim while Porras repeatedly struck the victim with a baton. Suarez was a direct perpetrator to the assault in count 3 based on his act of kicking the victim. Suarez was liable as an aider and abettor of a different assault perpetrated by Porras based on both kicking the victim and participating in the group assault. While simple assault would be a lesser included offense of assault with a deadly weapon if there was but one assault on the victim, such is not the case, as here where there is a separate act, by a separate person who inflicts a different harm.
In Gonzalez, supra, 60 Cal.4th at 537, the court held that a single act of oral copulation on a person who was both intoxicated and unconscious from the intoxication, amounted to two crimes. Convictions for both was lawful, although section 654 would limit punishment to only one count. The court applied the same rationale in People v. White (2017) 2 Cal.5th 349, where a single act of intercourse with a person who was unconscious due to intoxication justified two convictions, again subject to section 654.
Count 3 had the element of assault by Suarez using his feet to apply force. Count 4 had the element of assault by Porras using a baton to apply force. Suarez's liability for count 4 is vicarious, based on his conduct which aided and encouraged Porras to commit his offense. Hence each has a separate element from the other. The two assaults are not the same offense for double jeopardy purposes under Blockburger, supra, 284 U.S. at page 304, nor the same offense under the California Supreme Court's analysis in Gonzalez, supra, 60 Cal.4th at page 537. (See United States v. Dixon (1993) 509 U.S. 688.)
We reject Suarez's arguments that the two convictions violate his double jeopardy protections and affirm the judgment.
DISPOSITION
The judgment is affirmed.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
IRION, J.