Opinion
D074719
11-08-2018
THE PEOPLE, Plaintiff and Respondent, v. BALZER LOUIS BERGMAN III, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1702024) APPEAL from a judgment of the Superior Court of Riverside County, Elaine M. Kiefer, Judge. Reversed in part and remanded with directions, and in all other respects affirmed. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Balzer Louis Bergman III guilty of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), and one count of assault by means of force likely to cause great bodily injury (force-likely assault) (§ 245, subd. (a)(4); count 2). With respect to both counts, the jury further made a true finding that Bergman personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Bergman admitted he suffered a serious felony prior (§ 667, subd. (a)), a strike prior (§§ 667, subs. (c), (e)(1), 1170.12, subd. (c)(1)), and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Bergman to prison for a term of 12 years.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Bergman contends that his conviction for the force-likely assault in count 2 (§ 245, subd. (a)(4)) should be stricken on two alternative grounds: (1) force-likely assault is a lesser included offense of assault with a deadly weapon; or (2) force-likely assault and assault with a deadly weapon are merely different statements of the same offense. Bergman also contends that the one-year sentence for the prison prior (§ 667.5, subd. (b)) should have been stricken rather than stayed. We conclude that the two types of aggravated assault for which Bergman was convicted in count 1 and count 2 are merely different statements of the same offense. We also find merit to Bergman's contention that the one-year sentence for the prison prior should have been stricken rather than stayed. We accordingly remand with directions that the trial court strike one of the aggravated assault convictions in count 1 or count 2, and that it strike the one-year enhancement for the prior prison term.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Carlos A. is a homeless man who was living in a tent in a field behind a government building. Early in the morning of June 1, 2017, Carlos was woken up by blows from a blunt object to his head and chest. Carlos could not see what he was being hit with, but said it was something hard, such as a hammer or a pipe. He was hit four times in the head, and one time in the chest. Carlos saw the face of his attacker, whom he identified as Bergman. Bergman and Carlos knew each other and had dated the same woman. Carlos believed the attack could have been motivated by that romantic rivalry. According to Carlos, he passed out for a few hours after the attack and then walked to the emergency room. His face was swollen, he had an injury to his chest, and he had hairline fractures to his facial bones. Carlos spoke with a police officer at the hospital and identified Bergman as his attacker. Carlos told the officer that he might have been hit by a metal pipe wrapped with something.
To protect his privacy, we refer to the victim of Bergman's assault by his first name and last initial, and we intend no disrespect in doing so.
Bergman was charged with, and convicted of, one count of assault with a deadly weapon (§ 245, subd. (a)(1); count 1), and one count of force-likely assault (§ 245, subd. (a)(4); count 2), along with an enhancement in both counts based on Bergman's personal infliction of great bodily injury. (§ 12022.7, subd. (a).) At trial, the People made clear to the jury that count 1 and count 2 were based on the same conduct, but that both had been charged because the jury might reject count 1 if it concluded that no deadly weapon was used, such as if the jury believed Bergman struck Carlos with his hands or feet.
Bergman admitted he suffered a serious felony prior (§ 667, subd. (a)), a strike prior (§§ 667, subs. (c), (e)(1), 1170.12, subd. (c)(1)), and a prison prior (§ 667.5, subd. (b)). The trial court sentenced Bergman to prison for a term of 12 years, composed of a seven-year sentence on count 1, and a five-year sentence for the serious felony prior. A seven-year sentence on count 2, and a one-year sentence for the prison prior were stayed.
II.
DISCUSSION
A. The Two Aggravated Assault Counts Were Different Statements of the Same Offense, and One Must Be Stricken
For the same act of hitting Carlos with a blunt object in the head and chest, Bergman was convicted of two different types of aggravated assault, which appear in different subdivisions of section 245: (1) assault with a deadly weapon under section 245, subdivision (a)(1); and (2) force-likely assault under section 245, subdivision (a)(4). The trial court stayed the sentence on the conviction for force-likely assault pursuant to section 654, but Bergman argues that he should not have been convicted of both crimes, and that we should order that the conviction on one of the counts be stricken.
Bergman presents two alternative theories for his contention that one of the convictions should be stricken. First, relying on In re Jonathan R. (2016) 3 Cal.App.5th 963 (Jonathan R.), Bergman contends that force-likely assault is a lesser included offense of assault with a deadly weapon, and that he therefore may not be convicted of both the lesser and the greater offense. (See People v. Sanders (2012) 55 Cal.4th 731, 736 ["When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed."].) Second, relying on our recent decision in People v. Brunton (2018) 23 Cal.App.5th 1097 (Brunton), Bergman contends that the crime of force-likely assault and the crime of assault with a deadly weapon are different statements of the same offense, so that he may not be convicted of both. (People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana) [multiple convictions for a different statement of the same offense are not authorized when they are based on the same act or course of conduct]; § 954.) As we will explain, we conclude that based on Brunton, Bergman's second argument has merit because the two types of aggravated assault at issue here are different statements of the same offense.
The People argue that because Bergman did not raise the issue in the trial court, he forfeited his ability to seek relief on appeal on the basis that force-likely assault is a lesser included offense of assault with a deadly weapon. The People do not expressly argue that Bergman has forfeited his ability to seek relief on appeal on the basis that the two aggravated assault counts are different statements of the same offense. Even if the People intended to raise the forfeiture argument with respect to that issue, we would reject it. We are aware of no authority concluding that a defendant may forfeit an appellate contention that a conviction in one count must be stricken because it is a different statement of the same offense in another count. Moreover, we note that in the similar circumstance of section 654, which governs the closely related question of when a defendant may receive multiple sentences based upon a single act or course of conduct, a defendant cannot forfeit an appellate argument based on section 654 by failing to raise it below. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1312, fn. 2.)
In Brunton, supra, 23 Cal.App.5th 1097, this court considered the statutory structure of section 245 and the legislative history of the 2011 amendment to that statute, to conclude that the crime of assault with a deadly weapon and the crime of force-likely assault were different statements of the same offense. As a result of a statutory amendment in 2011, the crimes of assault with a deadly weapon and force-likely assault are currently set forth in two different subsections of section 245, subdivision (a) as follows:
"(1) Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.
[¶] . . . [¶]
"(4) Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." (§ 245, subd. (a).)
Prior to the 2011 amendment, the crimes of assault with a deadly weapon and force-likely assault were both set forth in the same subdivision of section 245. Specifically, the former statutory subdivision (a)(1) of section 245 stated that "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished." (Former Pen. Code, § 245, subd. (a)(1).) Case law construing the former version of subdivision (a) of section 245 held that the two types of aggravated assault in that subdivision were different statements of the same offense, so that a defendant could be convicted of only one. (In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5 ["The offense of assault by means of force likely to produce great bodily injury is not an offense separate from—and certainly not an offense lesser than and included within—the offense of assault with a deadly weapon."].)
In Brunton, we reviewed the legislative history for the 2011 amendment to section 245, which established that in making the amendment the Legislature intended only " 'technical, nonsubstantive changes' " to section 245. (Brunton, supra, 23 Cal.App.5th at p. 1107.) We concluded in Brunton that "the Legislature did not intend for its 2011 amendment of section 245 to create two offenses where the former statute set forth only one" because, when the Legislature acted, the courts had clearly construed former section 245(a)(1) as stating only one offense." (Brunton, at p. 1107.) We observed that "[t]he Legislature is presumed to have acted with knowledge of this decisional law." (Ibid.) We thus held that, "when based on a defendant's single act of using a noninherently dangerous object in a manner likely to produce great bodily injury, section 245, subdivisions (a)(1) and (a)(4) are merely different statements of the same offense such that the defendant may not be convicted of violating both subdivisions." (Brunton, at p. 1107.)
Brunton's holding applies here. As Brunton made clear, when both types of aggravated assault are "based on a defendant's single act of using a noninherently dangerous object in a manner likely to produce great bodily injury," the defendant may not be convicted twice. (Brunton, supra, 23 Cal.App.5th at p. 1107.) Both count 1 and count 2 were based on the single act of Bergman attacking Carlos with a blunt object. Specifically, the prosecutor made clear that the two different counts were based on the same conduct and were charged as two different counts only because it was possible the jury might conclude that the People had not proved that Bergman used a deadly weapon rather than merely using hands or feet to strike Carlos. As required by Brunton, that single act involved Bergman's use of "a noninherently dangerous object in a manner likely to produce great bodily injury." (Ibid.) Although Carlos was not sure what type of blunt object was used to attack him, he thought it might have been a hammer or a metal pipe wrapped in something. Our Supreme Court has stated that "[s]ome few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such." (People v. Aguilar (1997) 16 Cal.4th 1023, 1029, italics added.) Neither a hammer nor a metal pipe is in the limited class of inherently dangerous objects because the ordinary use of those objects is not to inflict harm on another person. (People v. Graham (1969) 71 Cal.2d 303, 327-328 [" 'instrumentalities . . . such as ordinary razors, pocket-knives, hatpins, canes, hammers, hatchets and other sharp or heavy objects, which are not weapons in the strict sense of the word and are not "dangerous or deadly" to others in the ordinary use for which they are designed, may not be said as a matter of law to be "dangerous or deadly weapons" ' "].) As the jury's verdict necessarily implies, however, the hammer, pipe or other blunt object was used by Bergman in a manner likely to produce great bodily injury, and thus became a deadly weapon under the circumstances.
Accordingly, applying Brunton here, we conclude that the convictions in count 1 and count 2 in this case were convictions based on a different statement of the same offense because both the conviction for force-likely assault and the conviction for assault with a deadly weapon were based on Bergman's use of a noninherently dangerous object in a manner likely to produce great bodily injury.
As a result of our decision that the crime of force-likely assault and the crime of assault with a deadly weapon are different statements of the same offense, we need not, and do not, consider Bergman's alternative argument that, based on Jonathan R., supra, 3 Cal.App.5th 963, force-likely assault is a lesser included offense of assault with a deadly weapon. (See Brunton, supra, 23 Cal.App.5th at p. 1107, fn. 10 [declining to reach the issue of whether the crime of force-likely assault is a lesser included offense of assault with a deadly weapon because it was not necessary to do so in light of conclusion that the two crimes were different statements of the same offense].) We note that regardless of which of the alternative theories for reversal presented by Bergman is found to have merit, the remedy is essentially the same: one of the convictions must be stricken.
As our Supreme Court has explained, " 'section 954 . . . does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.' " (Vidana, supra, 1 Cal.5th at p. 650.) Therefore, on remand, the conviction for either count 1 or count 2 must be stricken. (See Brunton, supra, 23 Cal.App.5th at p. 1108 [specifying as a remedy that "one of the duplicative convictions . . . must be stricken"].) B. The Sentence on the Prior Prison Term Should Have Been Stricken Rather Than Stayed
In relevant part, section 954 states, "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court." (§ 954.) As Vidana observed, the category of "different statements of the same offense" in section 954 is not referenced in the portion of the statute specifying the charges of which a defendant "may be convicted," and thus section 954 is best understood as precluding multiple convictions for different statements of the same offense arising from the same act or course of conduct. (Vidana, supra, 1 Cal.5th at p. 650)
The trial court imposed a one-year sentence for Bergman's prison prior (§ 667.5, subd. (b)), but ordered that the sentence be stayed because it was based on the same prior conviction as the five-year sentence imposed for his prior serious felony (§ 667, subd. (a)).
Bergman contends that the trial court should have stricken the one-year sentence enhancement under section 667.5, subdivision (b) for his prior prison term rather than staying it. Bergman's position has merit. In People v. Jones (1993) 5 Cal.4th 1142, 1150 (Jones) our Supreme Court held that "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." The disposition specified by Jones was that the case would be "remanded to the trial court with directions to strike the one-year enhancement of defendant's sentence for his prior offense of kidnapping under subdivision (b) of section 667.5." (Id. at p. 1153, italics added.) Consistent with Jones, this court previously has held that a trial court should strike rather than stay an enhancement under section 667.5, subdivision (b) when, as here, a greater enhancement is imposed for the same prior offense under section 667. (People v. Perez (2011) 195 Cal.App.4th 801, 805.)
The People argue that we should follow a different procedure discussed in People v. Lopez (2004) 119 Cal.App.4th 355 under which the sentence on an enhancement is stayed rather than stricken. Lopez dealt with a different issue than is presented here, namely the interaction of alternative sentencing schemes that apply to sex crimes. Lopez concluded that a finding under the One Strike law (§ 667.61) did not have to be stricken or dismissed when the defendant was sentenced under the provision applying to habitual sex offenders (§ 667.71). (Lopez, at pp. 358, 360-366.) In its discussion of that issue, the Lopez court suggested that our Supreme Court's decision in Jones is not binding authority on the issue of whether imposing and staying execution of an unused enhancement, not striking it, is the proper procedure when a court may execute only one of two alternative enhancements. (Lopez, at p. 364.) We find Lopez to be inapposite because it concerned the sentencing of a habitual sex offender and it did not decide the issue of whether section 667, subdivision (a) and section 667.5, subdivision (b) could both be imposed for the same prior offense. Further, we decline to follow the procedure suggested by Lopez's dictum in this case, as our Supreme Court in Jones, supra, 5 Cal.4th at page 1153, set forth the procedure to apply in the exact situation presented here, which we are bound to follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) --------
Accordingly, we will order that that trial court amend the judgment to strike the one-year prior prison term enhancement imposed under section 667.5, subdivision (b), rather than stay it.
DISPOSITION
We remand this matter to the trial court with directions to (1) strike Bergman's conviction on either count 1 for assault with a deadly weapon or count 2 for assault by means of force likely to produce great bodily injury; and (2) strike the one-year enhancement for the prison prior (§ 667.5, subd. (b)), rather than stay it. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. DATO, J.