Opinion
D071297
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. EDDIE LEE THOMAS, Defendant and Appellant.
Gerald J. Miller, 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, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD265690) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. Gerald J. Miller, 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, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Eddie Lee Thomas of assault with force likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2) and battery (§ 242, as a lesser included offense of assault with a deadly weapon; count 1). The jury found not true allegations in count 2 that defendant inflicted great bodily injury upon the victim. Thomas admitted allegations he suffered three prior strike convictions (§§ 667, subd. (b)-(i), 668, 1170.12). The court sentenced Thomas to the upper term of four years in state prison for count 2, which was doubled to eight years as a result of his prior strike convictions. The court imposed a sentence of six months for count 1, to run concurrently with the sentence for count 2.
Further statutory references are to the Penal Code unless otherwise stated.
The jury found Thomas not guilty of assault with a deadly weapon (§ 245, subd. (a)(1)) as charged in count 1.
The jury could not reach a verdict regarding possession of a billy (§ 22210; count 3). The court declared a mistrial and later granted the People's motion to dismiss the count.
Since the current offense was not considered a serious or violent offense as defined by section 667.5, the prior strikes doubled the sentence.
Thomas challenges his sentence on appeal contending (1) the court erred in justifying imposition of an upper term for count 2 with the brutality of the crime and the lack of credibility in Thomas's testimony and (2) the court erred in imposing a concurrent term for count 1 rather than staying punishment for this count based upon section 654. We conclude the court did not abuse its discretion with regard to selecting the upper term for count 2 and we further conclude there was substantial evidence to support the court's implied findings of separately punishable offenses based upon separate attacks upon the victim. We affirm the judgment.
BACKGROUND
A
Prosecution Case
The victim worked for a ride-hailing company, but had given Thomas "off the meter" rides a few times. On February 14, 2016, the victim gave Thomas a ride. At some point, Thomas left his cell phone in the victim's van. The victim later realized Thomas's cell phone was still in the van when he heard a cell phone ringing. Another individual, Paul, was in the passenger seat when the cell phone rang. The victim stated he returned within five minutes to the parking lot to return Thomas's cell phone.
To protect the privacy of the victim and the witness, we refer to the victim generally as "the victim" and we refer to the witness by only his first name. (Cal. Rules of Court, rule 8.90.)
Paul testified he was with the victim most of the day. Paul and the victim were hanging out in a church parking lot trying to find another friend when they saw Thomas. The victim let Thomas charge his cell phone in the victim's van.
After Thomas walked away from the van, the victim and Paul drove away to pick up their friend. They inadvertently left with Thomas's cell phone. When they were a couple of blocks away, the cell phone rang and they realized they had Thomas's cell phone. Paul answered the cell phone. Thomas asked them to return his cell phone. Paul told Thomas they would be right back.
According to Paul, the victim did not return right away because they were looking for another friend. Thomas called multiple times and seemed to become angry. They returned to a parking lot by a restaurant next to the church. Paul got out from the front seat of the van with the cell phone to look for Thomas. The victim stayed in the van. The victim stated he parked the van and, before he knew what happened, he was attacked. He heard a bang, saw a flash of light, and then found himself on the ground of a parking lot.
Paul saw Thomas walking down the street and told Thomas he had the cell phone. Thomas looked at Paul, but walked past him and went to the passenger door of the van, which was open. Thomas climbed into the van without saying anything. Thomas knelt on the front passenger seat, rested one arm against the driver's seat, and hit the victim in the face forcefully three to five times with his right fist. The victim screamed. The victim picked up part of a speaker and tried to hit Thomas with the speaker part.
After Thomas stopped hitting the victim, Thomas got out of the van. Paul started to hand Thomas the cell phone. The victim then started crying and yelling at Thomas in a scared voice. The victim said, "I'll kick your ass" or "I'm going to kill you."
According to Paul, Thomas became angry and "showed him what was up." Thomas went to the driver's side of the van. Thomas hit the victim through the van window in the thigh and head with a billy club. Thomas struck the victim forcefully with the club quite a few times and it appeared Thomas was trying to hurt the victim. The victim tried to punch back or hit back with the speaker part, but he was not successful in striking Thomas. The victim tried to protect his head by putting his arms up over his head. Thomas seemed to be in a trance or another world as he repeatedly struck the victim. The victim screamed loudly and in a high pitch, as if he were in pain.
Paul flagged down a police officer who was parked on the other side of the building. When Paul returned to the scene, Thomas was walking around the van. The driver's door was open. The victim was still in the van and was acting confused. Thomas unloaded his pockets and threw things under the van as a police officer asked him to sit down on the ground. A wooden club rolled underneath the van on the driver's side.
The responding police officer heard yelling. He saw Thomas standing next to the driver's side of the van and yelling at the person seated in the driver's seat of the van. Thomas was yelling, "Give me my shit, give me my shit." The person in the van was crying. Thomas walked around the back of the van, opened the door on the passenger's side and started rummaging through the van yelling, "Give me my phone, give me my phone."
The officer separated the parties and had Thomas sit down on the ground. Thomas was agitated and angry. Thomas said the victim had taken his cell phone. The victim got out of the van and said he was beaten by Thomas. The victim was bleeding profusely from his face, head, and neck. The victim said Thomas hit him with a bat or a screwdriver.
The officer found a billy club on the ground under the van on the driver's side. The officer spoke to Paul, who said Thomas used a wooden object, a billy club, to hit the victim.
The victim was transported to an emergency room by paramedics. The victim sustained a laceration on the back of his head and a large laceration on his lower lip. He was also tender on his mid- and lower back. A plastic surgeon repaired the lip laceration. The emergency room physician placed six staples to repair the head laceration. The victim described his pain as eight out of 10.
B
Defense Case
Thomas testified on his own behalf. He had known the victim for about two months before the incident. The victim gave Thomas rides and Thomas said he helped with car repairs so the victim could drive for the ride-hailing company.
On the day of the incident, Thomas was with the victim in a parking lot by a church. Thomas asked to charge his Bluetooth speaker and battery in the victim's van. Thomas placed his cell phone on a seat on the passenger side of the van and went to get a drink of water. When he turned around, he saw the victim driving away. Thomas said he yelled after the van saying his cell phone was in the vehicle. Thomas borrowed a cell phone and called his own cell phone number. When Paul answered, Thomas asked why he was answering his cell phone. Paul said he did not know the cell phone was there. Thomas asked them to bring the cell phone back because he needed it. Paul said they were going to meet a "dope guy" and they would be back in 15 minutes. Thomas stated they did not return for five hours.
When the van returned to the restaurant parking lot, Thomas said a female got out of the back of the van holding Thomas's speaker. When Thomas asked her why she had his speaker, she said, "I don't have your speaker" and started laughing. Thomas said Paul also got out of the vehicle, but he did not say anything about the cell phone.
Thomas leaned into the passenger side of the vehicle and asked the victim for his cell phone. He claimed the victim said he did not have the cell phone, but that the female had tried to steal it. Thomas said he asked for the cell phone again and the victim laughed. Thomas said the victim kicked him when Thomas tried to grab the victim's cell phone. Thomas said he then hit the victim twice. He swung at the victim once as he was leaning over the passenger seat in the front and said he missed. He exited the van and re-entered it through the sliding door on the passenger side so he could get a better angle to throw a punch. He then hit the victim in the chest and in the face.
Thomas claimed he was shocked the victim's mouth started bleeding. Thomas said the victim started ranting and whining about wanting to kill Thomas. Thomas said he got out of the van and asked Paul where his things were. Thomas then went around to the front of the van and saw the victim throwing things at him, which Thomas found to be comical. He saw the victim pick up a billy and start to open the driver's door. Thomas said he slammed the door and the door hit the victim's head.
Thomas said he grabbed the billy with his left hand and they wrestled with it. Thomas said he punched the victim again. The victim let go of the billy and started crying and screaming. Thomas said he threw the billy down because he did not need it. Thomas claimed he reacted to the victim's actions.
Thomas was impeached on cross-examination regarding portions of his testimony. He admitted he was not truthful when he said he had been out of the drug game for five years. He admitted three convictions for possessing drugs or drug paraphernalia within five years and admitted using drugs with the victim on occasions prior to the incident. He also admitted his prior felony conviction was not just a "misunderstanding between friends," as he had said, but that he physically held a woman against her will and threatened her. In that case, he pleaded guilty to unlawfully violating the personal liberty of the woman by violence, menace, fraud, or deceit. He also admitted convictions for robbery and theft.
DISCUSSION
I
California's determinate sentencing law specifies three terms for most offenses and the decision to impose an upper term rests within the broad discretion of the trial court. The trial court has discretion to select the lower, middle, or upper term when imposing a sentence for a crime subject to determinate sentencing. (§ 1170, subd. (a)(3).) In choosing among the terms, "[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing" (§ 1170, subd. (c)), but the court is "not ... required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) A single aggravating factor may be sufficient to support an upper term sentence. (People v. Weber (2013) 217 Cal.App.4th 1041, 1064.)
California Rules of Court, rule 4.421 sets forth a nonexclusive list of aggravating circumstances the court may consider in choosing a sentence term. (Cal. Rules of Court, rule 4.408(a); People v. Crabtree (2009) 169 Cal.App.4th 1293, 1326.) The court may consider factors relating to the crime, "whether or not charged or chargeable as enhancements," including the fact "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Cal. Rules of Court, rule 4.421(a)(1).)
We review the court's sentencing decision for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for [the] decision." (Ibid.)
The court stated it selected the upper term of four years for count 2, assault by means likely to produce great bodily injury, "because of the brutality of the attack and because the court found defendant's testimony on the stand was less than credible." Thomas contends the court's use of the brutality of the attack to justify the upper term is an improper aggravating circumstance because brutality is subsumed as an element of the offense of assault with great bodily injury, which he claims requires infliction of great bodily injury. He also contends the court improperly relied upon his lack of credibility as a separate aggravating factor. We disagree.
First, actual infliction of great bodily injury is not an element of the offense of assault by means likely to produce great bodily injury. (People v. Parrish (1985) 170 Cal.App.3d 336, 343.) Section 245, subdivision (a)(4), prohibits "an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury." (People v. Muir (1966) 244 Cal.App.2d 598, 604.) For purposes of the statute, "whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) "Because the statute speaks to the capability of inflicting significant injury, neither physical contact nor actual injury is required to support a conviction." (People v. Brown (2012) 210 Cal.App.4th 1, 7.)
Further, a defendant need not intend to inflict great bodily injury. (People v. Covino (1980) 100 Cal.App.3d 660, 666.) "A single blow may be likely to produce great bodily injury, although there is no specific intent in the mind of the assailant to inflict great bodily injury." (People v. Richardson (1972) 23 Cal.App.3d 403, 411.) A fist thrown toward a victim with force sufficient to smash a car window may be sufficient to create a likelihood of great bodily injury even though no injury occurred. (People v. Leonard (2014) 228 Cal.App.4th 465, 488.) In People v. Russell (2005) 129 Cal.App.4th 776, 788, the court concluded pushing a person into a street knowing a vehicle was approaching could constitute force likely to cause great bodily injury.
Second, rule 4.421 of the California Rules of Court "does not require great bodily harm. If it did, then the references to great violence and threat of great bodily harm would be meaningless. Moreover, the use of the disjunctive 'or' makes clear that the rule may be satisfied by cruel, vicious or callous acts other than those involving great violence, great bodily harm, or threat of great bodily harm." (People v. Duran (1982) 130 Cal.App.3d 987, 990.) "[T]he term 'viciousness and callousness' under [this rule] is separate from and not synonymous with 'great bodily harm.' " (People v. Wilson (1982) 135 Cal.App.3d 343, 357, overruled on other grounds, People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
In this case, the court considered the evidence and determined the brutality or viciousness of the attack was an aggravating factor to impose the upper term. There was evidence Thomas entered the van without saying a word, positioned himself in such a way in the van to inflict harm, and then punched the victim as many as five times in the face until the victim was bleeding and screaming. Only one punch would have been sufficient to support the jury's finding of assault with force likely to inflict great bodily injury. The continued beating as the victim screamed and cried showed brutality and viciousness beyond merely threatening great bodily injury.
In his own testimony, Thomas admitted repositioning himself in the van so he could effectively throw punches.
After he completed this beating, Thomas moved out of the van to talk with Paul. When Thomas heard the victim start to yell and cry or whine about wanting to "kick [Thomas's] ass" or to "kill [Thomas]," Thomas became angry and "showed [the victim] what was up." According to Paul, Thomas went to the driver's side of the van where he repeatedly struck the victim in the thigh and head as the victim attempted to avoid the blows by covering his head with his arms. Thomas appeared to be in a trance and intent upon hurting the victim. Thomas described himself as an experienced street fighter who was larger than the victim and unafraid of the victim. He found the victim's actions in throwing items at Thomas humorous. Even so, by his admission, he struck the victim multiple times, including in the head, as the victim sat in the driver's seat of the van.
Either attack was sufficient to support the jury's conviction for assault with force likely to inflict great bodily injury. Beyond merely threatening great bodily injury, each of these beatings demonstrated "brutality" by Thomas or, in other words, "a high degree of cruelty, viciousness, or callousness" and justified the court's imposition of the upper term for count 2. (Cal. Rules of Court, rule 4.421(a)(1).)
In response to a jury note, the court informed the jury, "With regard to Count 2, the People presented evidence of more than one act to prove that the defendant committed the offense [of assault with force likely to inflict great bodily injury]. You must not find the defendant guilty of Count 2 unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."
We do not consider the court's reference to Thomas's lack of credibility to be an enunciation of a separate aggravating factor, but rather a comment on the evidence. The court apparently believed Paul's account of the brutality of Thomas's conduct over Thomas's version of the events in which he minimized his conduct and claimed he acted in response to the victim's actions.
We need not reach the issue of whether the court improperly relied upon lack of credibility as a separate aggravating factor, however, because the single aggravating factor of a high degree of viciousness was sufficient to justify the court's imposition of the upper term. (People v. Weber (2013) 217 Cal.App.4th 1041, 1064.) Even if the trial court erred in imposing a sentence, we would not remand the case for " 'resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' " (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband); People v. Price (1991) 1 Cal.4th 324, 492, ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper"].) In this case, we conclude there was no abuse of discretion and, even if the court improperly relied on Thomas's lack of credibility as a separate aggravating factor, there is no reasonable probability the court would have imposed a lesser sentence given the existence of a separate aggravating factor.
II
Thomas contends the court erred in imposing a concurrent sentence for the battery conviction because his conduct in assaulting the victim was part of a single criminal act with a single criminal intent, i.e. "to inflict harm upon [the victim] in retaliation for [the victim's] perceived misappropriation of [Thomas's] cell phone." He asks us to remand the matter for resentencing and direct the court to stay the sentence under section 654 for the battery conviction. We decline Thomas's request because we conclude there was substantial evidence to support the court's sentencing determination.
Section 654, subdivision (a), bars multiple punishment for convictions arising from " 'the same act or course of conduct.' " (People v. Correa (2012) 54 Cal.4th 331, 337.) Although a single act or course of conduct may result in multiple convictions (§ 954), "the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited" by section 654. (Correa, supra, at p. 337.)
" ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885 (Capistrano).) The temporal proximity of the offenses does not determine whether the transaction is indivisible, but rather the defendant's intent and objective. (Id. at p. 886.)
" ' "The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' " (Capistrano, supra, 59 Cal.4th at p. 886.) Because the trial court is vested with broad latitude to make this factual determination, " '[i]ts findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.' " (People v. Vang (2010) 184 Cal.App.4th 912, 916.)
Contrary to Thomas's contention, the evidence in this case supported the court's implicit findings of two separately punishable offenses based upon separate intentional acts. (People v. Osband (1996) 13 Cal.4th 622, 730.) According to Paul, Thomas got into the van from the passenger's side when the victim returned to the parking lot and beat the victim repeatedly. This incident was, as Thomas admits on appeal, in retaliation for the victim leaving with Thomas's cell phone. However, after Thomas stopped beating the victim, Thomas got out of the van and approached Paul to discuss the cell phone. When the victim began yelling that he wanted to kill Thomas or "kick [Thomas's] ass," Thomas became angry. According to Paul, Thomas then "showed [the victim] what was up." Thomas went to the driver's side of the van where he repeatedly struck the victim in the thigh and head. It appeared Thomas was trying to hurt the victim. We agree with the People's contention that there was substantial evidence to support an inference the second incident was intended to punish the victim or put the victim in his place for talking back.
During the second attack, Paul said Thomas struck the victim multiple times with a billy club. Thomas admitted to slamming the victim's head with the van door and then punching the victim in the head to get the billy club away from the victim. --------
Each attack or assault was volitional and separated by an interval of time "during which reflection was possible." (People v. Trotter (1992) 7 Cal.App.4th 363, 368 [three separate gunshots were separately punishable as three separate assaultive acts]; see also People v. Surdi (1995) 35 Cal.App.4th 685, 689 [punishment for multiple offenses appropriate for separate stabbing incidents when there was evidence of separate intentions to do violence for each stabbing and pauses in the action].) The evidence supported the jury's verdicts for assault with force likely to inflict great bodily injury and simple battery based upon the two separate attacks. " 'Defendant should ... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his ... assaultive behavior.' " (Trotter, supra, at p. 368, quoting People v. Harrison (1989) 48 Cal.3d 321, 338.)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: NARES, J. O'ROURKE, J.