Opinion
B157604.
7-14-2003
DIVISION EIGHT THE PEOPLE, Plaintiff and Respondent, v. CHARLES RANDALL VENNE, Defendant and Appellant.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Charles Randall Venne appeals from the judgment entered following two jury trials which ultimately resulted in his conviction of possession of a deadly weapon, assault upon a police officer, and two counts of resisting an executive officer. He contends the trial court: (1) abused its discretion in excluding evidence of his mental state; (2) erred in refusing his request for a juror unanimity instruction; (3) erred by refusing his request that the jury be instructed on a lesser included offense; (4) committed judicial misconduct; and (5) committed sentencing errors in violation of Penal Code section 654. After review, we affirm the judgment.
All further undesignated section references are to the Penal Code.
Officers Edward Gomez and Terrence Hanou arrived at the scene about a minute after Buchanan. Following Buchanans directions, Hanou parked in the road, Gomez parked in the lot and both used their patrol car spotlights to illuminate defendant. When Hanou arrived, he saw defendant holding a lighted flare in each hand above his head and that Buchanan had his gun drawn.
FACTUAL AND PROCEDURAL BACKGROUND
The grassy area in front of the City of Covina Police Department is known as Civic Park. Around mid-day on November 26, 2000, when patrol officer Ramon Marquez was dispatched to the park to investigate a man harassing citizens coming into the police station, he saw defendant standing in the parking lot at the edge of the grassy area. Marquez tried to engage defendant in conversation, but defendant would only mumble incoherently. Defendant was walking directly towards Marquez in an aggressive manner when he pulled a crucifix out of his pocket, held it out and said several times, "Shoot me. If you shoot me, youre going to kill the world and you are evil." Defendant did not comply with Marquezs directions to stay where he was and sit down. After back up units arrived, Marquez used a control hold to take defendant to the ground. Defendant was then handcuffed and searched. No weapons were found.
Several days later, at about 4 a.m. on December 4, Linda Karaffa, a uniformed civilian parking control officer for the City of Covina Police Department, was returning to the station after her shift when flashing lights drew her attention to the walkway in front of the station. Karaffa observed someone approach her vehicle, then move into Civic Park, where she was able to discern that it was a man holding a lit flare in each hand. Karaffa called the incident into the station. Karaffa remained in her car until she saw Lieutenant Patrick Buchanan, who was the early morning watch commander that day, leave the station. Karaffa then ran towards the station. As she passed Buchanan, Karaffa told him she saw the man take something from his pocket and put it on the ground. Before she ran into the station, Karaffa heard Buchanan say in a calm voice: "Hey, whats going on?"
Buchanan saw defendant standing in the middle of Civic Park with his arms fully extended at shoulder height, holding a lit flare in each hand. Buchanan directed defendant to put down the flares and to lie on the ground. Defendant did not comply, but kept repeating: "You were supposed to help me." Buchanan believed defendant might be mentally disturbed. Gomez retrieved a beanbag shotgun from his patrol car.
Evidence of Buchanans belief was admitted at the first trial but, at a second trial, witnesses were precluded from testifying as to their observations of defendants mental stability.
While Gomez and Hanou were positioning themselves, Buchanan continued to instruct defendant to put down the flares and lie on the ground. Still not compliant, defendant continued to repeat: "You were supposed to help me." When the two flares he was holding extinguished, defendant dropped them and removed a large wooden axe handle from his jacket, which he held as though he were going to hit something with it. Defendant next pulled a two-foot long, heavy metal chain out of his jacket, which he began swinging in circles over his head. Defendant did not comply with instructions to put down the weapons.
Defendant was about 40 feet away when Buchanan, believing defendant was going to hit him with the axe handle, instructed Gomez to fire at defendant with the bean bag shotgun. Defendant grimaced, cursed and brought his arms down when the shot hit him in the chest, but soon began advancing again, swinging the chain and raising the axe handle. Buchanan instructed Gomez to fire again. Gomezs second shot also hit defendant in the chest. Once again, defendant grunted and dropped his arms, but then resumed his forward movement. Four bean bag shots were insufficient to stop defendants charge. After the fourth shot, defendant was out of range of the bean bag shotgun.
Normally, a beanbag shot will incapacitate a suspect. Its effective range is about 20 feet, but its optimum range is between 8 and 10 feet.
As defendant ran towards Buchanan, Buchanan ran backwards firing at defendant from a 9 mm handgun. After the first two shots, defendant did not slow his approach and Buchanan could not tell if either shot hit him. Instead, defendant appeared to increase his speed. Buchanan fired a total of between 9 and 11 rounds at defendant. He stopped firing when defendant was about five feet away, to avoid hitting either Gomez or Hanou.
Gomez and Hanou had similar recollections of the incident. Hanou drew his weapon but did not fire for fear of hitting Gomez or Buchanan. When Gomez saw defendant charge towards Buchanan, he concluded defendant was a threat. Gomez dove to the ground when he saw a muzzle flash from Buchanans gun. When the firing stopped, Gomez stood and saw defendant stagger toward Buchanan before falling between 5 and 10 feet away from him.
After defendant was lying on the ground not moving or speaking, Gomez, Hanou and Buchanan converged on him. The axe handle and chain were seized. Because defendant was wearing bulky clothes, Buchanan could not tell whether defendant was bleeding but, after defendant was handcuffed, Buchanan called for paramedic assistance.
In an amended information filed August 7, 2001, defendant was charged with assault upon peace officers Buchanan and Gomez ( § 245, subd. (c)) (count 1); possession of a deadly weapon, the wooden axe handle ( § 12020, subd. (a)(1)) (count 2); and resisting executive officers Buchanan and Gomez ( § 69) (counts 3 and 4, respectively). The Honorable Reginald Yates presided over a two-day jury trial. That jury convicted defendant of possession of a deadly weapon, but were unable to reach a verdict on the other charges. As to those other charges, Judge Yates declared a mistrial.
The Honorable Clifton Allen presided over a second trial on the unresolved charges. On March 5, the second jury convicted defendant of the remaining assault and resisting charges.
Immediately following the second jurys verdict on March 5, defense counsel advised the trial court that defendant had waived time for sentencing on the possession of a deadly weapon conviction arising out of the first trial, only until the first day of the second trial. Defendant would not agree to any additional time waiver. In response, the trial court imposed the high term of three years on the weapon possession charge, indicating it would reconsider the sentence at the sentencing hearing on the other convictions. On March 19, the trial court sentenced defendant to a total of five years, eight months in prison. The trial court sentenced defendant to the aggravated term of five years on the assault conviction and reduced the sentence for possession of a deadly weapon from three years to a consecutive eight months (one third the two-year mid term). Pursuant to section 654, imposition of sentence on the convictions for resisting arrest was stayed. Thus, the trial court reduced the aggravated three year term it had previously imposed on the possession of a deadly weapons charge, to one third the mid-term.
Defendant contends the trial court erred in suspending rather than staying the sentence imposed on counts 3 and 4 (resisting). The People agree that the sentences should be stayed pursuant to section 654. As defendant and the People note, although the trial court used the word "suspend" at the sentencing hearing, the minute order and abstract of judgment correctly indicate the sentences were stayed. There is no error.
Defendant filed a timely notice of appeal.
DISCUSSION
Evidence of Defendants Mental Illness
Defendant contends the trial court erred in excluding evidence of defendants mental illness at the second trial. He argues his mental state was probative of: (1) whether the officers were responding properly to the situation, an element of the charge of resisting an executive officer; and (2) whether he knew the victims were peace officers, an element of the charge of assault upon a peace officer.
Although all relevant evidence is generally admissible (Evid. Code, § 351), the erroneous exclusion of evidence does not justify reversal unless the error "resulted in a miscarriage of justice . . . ." (Evid. Code, § 354.) A miscarriage of justice occurs only when it is affirmatively demonstrated that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (Brokopp v. Ford Motor Company (1977) 71 Cal. App. 3d 841, 853-854, 139 Cal. Rptr. 888; cf. People v. Champion (1995) 9 Cal.4th 879, 919, 891 P.2d 93, disapproved of on another point in People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2, 914 P.2d 846 (conc. opn. of George, C.J., joined in by a majority of the court).)
"Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including but not limited to . . . knowledge . . . with which the accused committed the act." (§ 28, subd. (a); see also People v. Velez (1985) 175 Cal. App. 3d 785, 792, 221 Cal. Rptr. 631 [evidence of mental disease, defect or disorder is not admissible where a general intent crime is charged].) Evidence of mental disease, defect or disorder is "admissible solely on the issue of whether or not the accused actually formed a required specific intent . . . when a specific intent crime is charged." (§ 28, subd. (a).) Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 784.)
Here, at defendants second trial, the trial court instructed defense counsel not to "get into this mental illness stuff" because defendant had not identified any mental illness expert witness. In response to defense counsels relevancy argument, the prosecutor countered that Buchanan was not qualified to opine on whether appellant was mentally ill. After taking the matter under submission, the trial court excluded evidence of the police officers beliefs as to whether defendant was mentally ill.
The trial court sustained the prosecutors "lack of foundation" and "speculation" objections to defense counsels inquiry as to whether Buchanan believed defendant was mentally ill. The trial court also sustained a relevancy objection to an inquiry as to whether Buchanan was trained to take into account a persons mental illness when deciding whether to use force.
Defendants contention that evidence of his mental illness was relevant to prove he had no knowledge that Buchanan and Gomez were peace officers within the context of the charge of assault on a peace officer is easily disposed of. Pursuant to section 28, subdivision (a), evidence of defendants mental illness was not admissible to negate defendants capacity to know that Buchanan and Gomez were peace officers. Moreover, defendant need not have actually known the victims were police officers. It was sufficient if there was evidence he should have known this. (See People v. Brown (1988) 46 Cal.3d 432, 250 Cal. Rptr. 604, 758 P.2d 1135 [murder of peace officer].) That evidence was abundant.
People v. Garcia (1967) 250 Cal. App. 2d 15, 58 Cal. Rptr. 186, does not compel a contrary result. In that case, a conviction for battery on a police officer was reversed because of failure of the court to instruct on the effect of voluntary intoxication, where the defendant had testified that he was too drunk to recognize the officers as such. (Id. at p. 58.) People v. Garcia was decided prior to the enactment of section 28. Here, there was no offer of proof that a qualified witness was prepared to testify on subjects that might assist the trier of fact in determining whether any mental illness prevented defendant from recognizing the officers as such.
Defendants contention that such evidence was admissible to prove whether the officers were acting properly in their response to defendant is equally without merit. Even assuming the evidence was relevant, neither Buchanan nor Gomez were qualified to opine on whether defendant was mentally ill. (See People v. Crosier (1974) 41 Cal. App. 3d 712, 723, 116 Cal. Rptr. 467; Evid. Code, § 870 ["A witness may state his opinion as to the sanity of a person when: [P] (a) The witness is an intimate acquaintance of the person whose sanity is in question; [P] (b) The witness was a subscribing witness to a writing, . . .; or [P] (c) The witness is qualified under Section 800 or 801 to testify in the form of an opinion."].) Buchanan and Gomez were neither intimate acquaintances of defendant, subscribing witnesses to a writing, nor qualified as experts under sections 800 or 801. Defendant was not precluded from presenting a mental illness defense to these charges; he was foreclosed only from utilizing inadmissible evidence.
Unanimity Instruction
Defendant contends his right to due process was violated by the refusal of the trial court to give CALJIC No. 17.01 in the second trial. He argues the evidence showed defendant committed various acts any one of which a reasonable juror might have found constituted assault or resisting an executive officer, but the instructions given did not advise the jury that, to convict defendant, they had to unanimously agree which act constituted the charged offense. We disagree.
CALJIC No. 17.01 reads, in part: "The prosecution has introduced evidence for the purpose of showing that there is more than one [act] upon which a conviction [on Count 1] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] committed any one or more of the [acts]. However, in order to return a verdict of guilty [to Count 1] all jurors must agree that [he] committed the same [act] [or] [acts] . . . ."
A unanimity instruction must be given where the evidence shows that more than one criminal act was committed which could constitute the charged offense, and the prosecution does not rely on any single act. (People v. Riel (2000) 22 Cal.4th 1153, 1199, 998 P.2d 969; People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) The unanimity instruction is not required when the acts alleged are so closely related as to form part of one transaction. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631; People v. Stankewitz (1990) 51 Cal.3d 72, 100, 270 Cal. Rptr. 817, 793 P.2d 23.) "The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]" (Ibid.) In assessing whether the instruction is required, the question is whether: (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the second situation, no unanimity instruction is required. (People v. Sanchez, supra, at p. 631; People v. Stankewitz, supra, at p. 100.)
Here, the evidence showed a single course of conduct during which defendant, after refusing to comply with multiple demands that he put down his weapons, advanced upon Buchanan and Gomez in a threatening manner. Defendant offered the same defense to his entire course of behavior: as a result of mental illness, he did not know Buchanan and Gomez were peace officers, and Buchanan was not properly engaged in the performance of his duty inasmuch as he failed to take account of defendants mental illness in responding to the situation. The evidence merely presented the possibility the jury may divide, or be uncertain, as to the exact way the defendant was guilty of the individually charged crimes, but no risk that the jury might have divided on two distinct crimes. Under these circumstances, CALJIC No. 17.01 was not required.
Instructions on Lesser Included Offenses
Defendant contends the trial court in the second trial erred in refusing his request that the jury be instructed on the misdemeanor charge of resisting an officer in violation of section 148, a lesser included offense of the charged offense of resisting a peace officer in violation of section 69. He argues the evidence raised a question as to whether all of the elements of a violation of section 69 were proved and there was substantial evidence that might have justified a conviction of the lesser offense. We disagree.
In pertinent part, section 69 reads: "Every 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 . . . ." In pertinent part, section 148, subdivision (a)(1) provides: "Every person who willfully resist, delays, or obstructs any public officer [or] peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . shall be punished . . . ."
Instruction on a lesser included offense is justified only when a reasonable juror could conclude from the evidence presented "that the lesser offense, but not the greater, was committed. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162, 960 P.2d 1094.) The distinction between sections 69 and 148 is that section 69 "always requires force, menace or threats, directed at an executive officer. [Citation.]" (People v. Williams (1999) 72 Cal.App.4th 1460, 1464.) Thus, a trial court must instruct on section 148 as a lesser included offense of section 69, only if there is substantial evidence from which a juror could infer the defendant directed no threats, violence or force at an executive officer.
No reasonable juror could conclude from the evidence adduced at the second trial that, if defendant resisted Buchanan and Gomez, he did so without threat of violence or force. Despite the conflict in the evidence as to whether defendant was swinging the chain or dangling it at his side, the evidence was undisputed that defendant advanced on Buchanan and Gomez with the axe handle raised over his head as though intending to strike. Under these circumstances, the trial court did not err in refusing to give instructions on violation of section 148.
Judicial Misconduct
Defendant contends the trial court committed prejudicial misconduct. He argues the trial court: (1) failed to maintain an unbiased attitude; (2) failed to consider evidence of defendants mental state vis-a-vis sentencing; and (3) imposed the upper term without evidentiary support. We find no merit in this contention.
". . . A trial court commits misconduct if it persists in making discourteous and disparaging remarks to a defendants counsel . . . and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense . . . . [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1107, 875 P.2d 36.) Judicial misconduct claims generally may be waived by failure to object or to request an admonition. (Id. at p. 1108.) However, "where . . . the appearance of judicial bias and unfairness colors the entire record, we depart from the general rule requiring plaintiff to make an affirmative showing of prejudice. The test is not whether plaintiff has proved harm, but whether the courts comments would cause a reasonable person to doubt the impartiality of the judge or would cause us to lack confidence in the fairness of the proceedings such as would necessitate reversal. . . ." (Hernandez v. Paicius (2003) 109 Cal. App. 4th 452, 461.)
Here, in support of the contention that the trial court "failed to maintain an unbiased attitude," defendant refers to "curt exchanges with [defendants] counsel during the trial." For example, the trial court (1) refused defendants request for a haircut order, and (2) complained that defense counsel did not inform the court on the first day of the second trial that defendant had waived sentencing on the gun possession charge adjudicated in the first trial only until that day. We find the trial courts actions constitute no more than the exercise of reasonable control of the trial and evidenced no bias on the judges behalf. (See People v. Blackburn (1982) 139 Cal. App. 3d 761, 764, 189 Cal. Rptr. 50.)
After the jury was excused on March 5, 2002, defense counsel brought to the trial courts attention that defendant had waived time for sentencing only until the commencement of the second trial. The following colloquy ensued: "[DEFENSE COUNSEL]: But in any event, theres a record he did waive time until that date. He was not sentenced on that date and there was no further time waiver, so our position is that — [P] THE COURT: Well, I11 tell you if I let him go, hell be arrested before he gets out any doors, rearrested on the thing and just resentence him. I mean, if you want to get right down to it, its no big deal. [P] [DEFENSE COUNSEL]: I guess I dont want to be hypertechnical, I just want to point out to the court the — [P] THE COURT: Well, youre not being an officer of the court pulling this kind of baloney, because I wasnt informed of that the day of the trial, because I would have sentenced him. [P] . . . [P] [DEFENSE COUNSEL]: I believe I fulfilled my obligations to my client. [P] And I just want to point out to the court that Im not waiving any additional time on sentence on the prior conviction. [P] THE COURT: Well, Ill sentence him right now, then." (Italics added.) We note that defendant does not claim on appeal that the trial court erred in sentencing him beyond the date of his time waiver. He merely cites the trial courts comments and sentencing choices as examples of judicial bias and misconduct.
To the extent defendant complains that, contrary to preferred practice, Judge Allen, who presided over the second trial but not the first, sentenced defendant on the possession of a deadly weapon conviction that resulted from the first trial, his failure to make a timely objection on these grounds constitutes a waiver of this issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-353, 885 P.2d 1040 [a sentence which, though otherwise permitted by law, was imposed in a procedurally flawed manner is deemed waived absent an objection in the trial court].)
To the extent defendant argues the trial court made various sentencing errors on March 5, including failing to comply with California Rules of Court, rules 4.410 through 4.433 and section 1170, subdivision (a)(3), those errors were rectified on March 19, when the trial court modified and reduced the sentence it imposed on March 5. Accordingly, defendant has suffered no prejudice.
Also unavailing is defendants argument that the trial courts "abandonment of impartiality and disregard for proper procedure continued during the sentencing hearing on March 19, 2002." Under the rubric of judicial misconduct, defendant argues that reversal is required because the trial court failed to consider appellants mitigation evidence, including his mental condition, and that there was no support for the trial courts finding that aggravating circumstances outweighed those in mitigation. We find no error on the merits, let alone judicial misconduct.
One factor in aggravation is sufficient to justify imposition of the high term. (People v. Castaneda (1999) 75 Cal.App.4th 611, 614.) Even if one of the factors relied upon to impose an aggravated term was improper, remand for re-sentencing is not required where other valid factors are mentioned. (People v. Clark (1992) 12 Cal.App.4th 663, 667.) We presume the trial court exercised its discretion to achieve legitimate sentencing objectives, unless the party attacking the sentence can show that the decision was irrational or arbitrary. (People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968, 977, 928 P.2d 1171.) In the absence of such a showing, we will not interfere with the sentence chosen by the trial court. (See People v. Preyer (1985) 164 Cal. App. 3d 568, 573, 210 Cal. Rptr. 807.)
Here, at the March 19 sentencing hearing, the trial court indicated it had read defendants statement in mitigation and sentence memorandum, as well as the declaration of Dr. Mark A. Jaffe attesting to defendants mental state. Defense counsel argued that violence was an element of the crime of assault and so could not be used as an aggravating factor, and that defendants lack of criminal history and mental condition were mitigating factors. Finding no circumstances in mitigation despite the absence of a prior record, the trial court found circumstances in aggravation included that the crime involved great violence and threat of great bodily harm, defendant was armed with an axe handle and chain, and defendant engaged in a pattern of violent conduct that indicated he was a danger to society.
Although the charge of assault with a deadly weapon was based upon defendants use of the axe handle, that defendant was also armed with a chain during the incident was a factor sufficient to support imposition of the aggravated term. (See Cal. Rules of Court, rule 4.421(a)(2) [circumstance in aggravation includes fact defendant was armed with or used a weapon at the time of the commission of the crime].) That defendant engaged in a pattern of violent conduct indicating a danger to society was also sufficient to support the aggravated term. (Cal. Rules of Court, rule 4.421(b)(1).) Defendants argument that there was no evidence of "pattern" is belied by the evidence that defendant had earlier been involved in a similar incident in Civic Park.
Section 654Defendant contends section 654 precluded imposition of sentence on both the assault on a peace officer conviction and the possession of a deadly weapon conviction. He argues the possession of the axe handle and the assault were an indivisible course of action for which separate punishment is not allowed. We disagree.
Section 654 proscribes multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) The question is whether the defendant harbored separate intents and objectives. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, 858 P.2d 611.) A trial courts findings and determination of whether section 654 applies will be upheld on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra , at p. 1312.)
The cases discussing the issue vis-a-vis convictions for a crime in which a firearm is used and for possession of that same firearm are instructive. In People v. Jones (2002) 103 Cal.App.4th 1139, for example, the issue was whether section 654 precluded separately punishing the defendant for shooting at an inhabited dwelling and for possession of the firearm used in that shooting. The court observed that multiple punishment is improper where the evidence demonstrates only that fortuitous circumstances put the firearm in the defendants hand at the instant of committing another offense, but is proper where the evidence shows that the defendant possessed the firearm before the crime, with an independent intent. (Id. at p. 1143; compare People v. Venegas (1970) 10 Cal. App. 3d 814, 818-819, 821, 89 Cal. Rptr. 103 [section 654 bars punishment for assault with a deadly weapon and possession of a firearm where there was no showing the defendant possessed the gun before the assault, and the defense presented evidence that he obtained it during a struggle moments before the shooting], with People v. Killman (1975) 51 Cal. App. 3d 951, 124 Cal. Rptr. 673 [section 654 does not bar multiple punishment for robbery and possession of a firearm where there was evidence the defendant gave his girlfriend money to purchase the gun used in the robbery several months before the robbery].
Here, the evidence established that defendant arrived at the scene with the axe handle in his possession. Thus, unlike People v. Venegas, supra, 10 Cal. App. 3d 814, where there was evidence the defendant acquired the weapon at the moment of the shooting, the evidence here supports a finding that defendant came to the scene already in possession of the axe handle before embarking on an apparently independent course of assaultive behavior. This is sufficient to support separate sentences for the possession of a deadly weapon and assault convictions.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J., and BOLAND, J.