Opinion
A157233
05-11-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EDWARD BLAHUT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-17-91751)
After he sprayed two other men with bear repellent, defendant Michael Blahut was convicted of several crimes, including two felony counts of using tear gas and one felony count of battery causing serious bodily injury. The trial court placed him on formal probation for five years and ordered him to serve 364 days in jail.
On appeal, Blahut claims, and the Attorney General concedes, that the tear-gas convictions must be overturned because bear repellent does not qualify as "tear gas" under Penal Code section 22810. Blahut also claims the battery conviction must be reversed because there was insufficient evidence of serious injury and his trial counsel rendered ineffective assistance by failing "to proffer crucial evidence about the regulation and properties of bear repellent." We reverse the tear-gas convictions but otherwise reject Blahut's claims.
All further statutory references are to the Penal Code unless otherwise noted.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On a Friday evening in August 2017, Doug S., his wife, and his two children, ages 10 and 12, were in their car at the drive-through of a Ukiah McDonald's. The drive-through was split into two lanes for ordering before turning into one lane for pick-up. As the family was in the right-hand lane, Doug S. noticed a car in the other lane "with music really loud, kind of backing up and pulling forward a couple feet, back and forth. And the person in this car was kind of banging their head or dancing and kind of gyrating around."
After his family ordered, Doug S. pulled forward into the single lane, so that the other car was behind them. As he and his family were waiting for their order, he heard "a revving engine" and then felt the other car hit his car, causing it to "lurch[] . . . pretty good." It seemed like the "gas was still being applied," as the other car "kind of rubbed up against [Doug S.'s car] and kind of hit [it] again, . . . scrap[ing] down [its] side." The other car then "released really quick and . . . flew . . . off to the side and hit a light pole."
Doug S. and his family initially stayed in their car while his wife called 911. The driver of the other car, whom Doug S. identified as Blahut, approached within a few feet of the family's car, said something "unintelligible," and returned to his own car. Blahut then "started to rummage" through his car and "was putting things into his coat[,] like kind of cleaning out the car." Blahut approached the family's car again, but Doug S. still could not understand what he was saying except for something like "$1,000."
Blahut repeated his movement between the two cars a few more times. Doug S. "could smell alcohol big time" on the other man. Worried that Blahut might have a weapon, Doug S. told his wife to take their children and run away, and he got out to confront Blahut. Blahut said something like, "I am out of here," or "I am gone," and he started running. Not wanting Blahut to get away, Doug S. tried to grab him. Blahut pushed Doug S., Doug S. pushed him back, and Blahut fell down.
Blahut got up and started running away again, as Doug S. ran alongside him and shouted at him to stop. Meanwhile, some McDonald's employees had informed a supervisor that one car had hit another car in the drive-through. The supervisor went outside, where he observed Blahut leaving the scene. The supervisor joined Doug S. in chasing Blahut.
The McDonald's supervisor testified that he and Doug S. caught up to Blahut at the end of the drive-through and gave Blahut a "bear hug" to try to stop him. All three men went to the ground, and Doug S. and the supervisor tried to hold down Blahut so he would not leave before the police arrived. According to Doug S., Blahut then "rolled over and had some tear gas or some pepper spray or something and kind of let [him] have it from a couple feet away all over [his] chest and in [his] beard . . . and up [his] nose and in [his] eyes." The substance, which was later discovered to be bear repellent, also hit the supervisor, who was farther away from Blahut than Doug S. was.
Doug S. testified that the experience of being sprayed was "the most painful thing [he experienced] in [his] life," worse than when his appendix burst and "like the worst sunburn you have ever had times ten." After being sprayed, he "basically wandered around blind in the street for a little bit." He "was screaming . . . at the top of [his] lungs," and someone brought him inside the McDonald's. There, employees and customers tried to help him by pouring milk and water on him, but he later learned that was "not the right thing to do" because "all of those oils and the burning part of it was distributed all over [his] body." The pain was worst in his face, neck, chest, and genitals.
Later that night, Doug S. visited the emergency room and had to be "decontaminated," which involved taking a shower and shaving his beard to remove the bear repellent. The substance's contact with water made it hurt more. Over the next few days, Doug S. experienced flare-ups of pain whenever he would sweat, causing him to have trouble sleeping.
Blahut tried to run away after using the bear repellent on the other men, but he was quickly apprehended by police officers who responded to the 911 call. He was charged with three felony counts based on his use of the bear repellent: two counts of using tear gas, one as to Doug S. and one as to the McDonald's supervisor, and one count of battery causing serious bodily injury as to Doug S. Blahut was also charged with misdemeanor counts of resisting an officer, driving under the influence (DUI), DUI with a blood-alcohol content (BAC) of .08 percent or more, and failing to stop at the scene of an accident. It was also alleged that Blahut had two prior DUI convictions and, during the charged incident, refused a chemical test and had a BAC of .15 percent or higher.
The felony counts were brought under sections 22810, subdivision (g)(1) (use of tear gas), and section 243, subdivision (d) (battery).
The misdemeanor counts were brought under section 148, subdivision (a)(1) (resisting an officer), and Vehicle Code sections 23152, subdivisions (a) (DUI) and (b) (driving with BAC of .08 percent or more), and 20002, subdivision (a)(1) (failing to stop at scene of accident).
Blahut was alleged to have a 2009 conviction in Iowa and a 2012 conviction in Colorado. The other allegations were made under Vehicle Code sections 23577, subdivision (a)(4) (refusal of chemical test), and 23578 (BAC of .15 percent or more).
Blahut pleaded no contest to the two DUI counts and admitted an accompanying allegation that his BAC was .15 percent or above, and trial on the remaining DUI-related allegations was bifurcated. A jury acquitted Blahut of the count of resisting an officer and convicted him of the remaining counts of using tear gas, battery, and failing to stop at the scene of an accident. He then admitted one of the prior convictions, and the remaining DUI-related allegations were dismissed. After denying Blahut's motion to reduce the felonies to misdemeanors, the trial court placed him on five years of formal probation and ordered that he serve 364 days in jail.
II.
DISCUSSION
A. Section 22810 Does Not Criminalize the Use of Bear Repellent.
Under section 22810, subdivision (g)(1), "any person who uses tear gas or any tear gas weapon except in self-defense is guilty of a public offense." "Tear gas" is defined to "include[] any liquid, gaseous or solid substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispersed in the air." (§ 17240, subd. (a).) Specifically excluded from this definition, however, is "any substance registered as an economic poison as provided in Chapter 2 (commencing with Section 12751) of Division 7 of the Food and Agricultural Code, provided that the substance is not intended to be used to produce discomfort or injury to human beings." (§ 17240, subd. (b).)
The parties agree that the bear repellent Blahut used is "registered as an economic poison" within the meaning of section 17240, subdivision (b). They also agree that bear repellent "is not intended to be used to produce discomfort or injury to human beings" under that provision, because the relevant question is whether the substance is generically intended by the manufacturer for use against humans, not whether a particular user intended to use it against humans.
We conclude that this is the correct interpretation of the statute. Otherwise, as the Attorney General points out, "the exception would swallow the rule given that criminal charges are filed only when [economic poisons, such as] pesticides[,] are used against a human being." Therefore, even though there was substantial evidence that Blahut used the bear repellent with an intent to cause discomfort or injury to humans, his convictions for using tear gas must be reversed.
B. Substantial Evidence Supports the Finding of Serious Bodily Injury.
Blahut also claims that his battery conviction cannot stand because there was insufficient evidence that Doug S. suffered serious bodily injury. We are not persuaded.
In evaluating claims challenging the sufficiency of the evidence, " 'we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Our review is de novo to the extent a substantial-evidence claim raises issues of statutory interpretation. (People v. Elder (2014) 227 Cal.App.4th 411, 417.)
Blahut was convicted of battery under section 243, subdivision (d), which establishes the punishment "[w]hen a battery is committed against any person and serious bodily injury is inflicted on the person." The term "serious bodily injury" is defined as "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (§ 243, subd. (f)(4).)
"Serious bodily injury" under section 243 is "essentially equivalent" to "great bodily injury" under section 12022.7, subdivision (f), which defines the latter term as "a significant or substantial physical injury." (People v. Johnson (2016) 244 Cal.App.4th 384, 391.) Thus, although "serious bodily injury" and "great bodily injury" do " 'have separate and distinct statutory definitions' " (People v. Santana (2013) 56 Cal.4th 999, 1008), courts interpreting one of the terms routinely look to decisions interpreting the other for guidance.
Whether an injury qualifies as "serious bodily injury" is a question of fact for the jury, and we cannot overturn the jury's finding just because " ' "the circumstances might reasonably be reconciled with a contrary finding." ' " (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) Here, Doug S. experienced severe pain in his face, upper body, and genitals, requiring a visit to the emergency room. He was temporarily blinded, and his normal functioning was impaired throughout the next few days because his skin's contact with moisture caused pain flare-ups. Certainly, these amounted to injuries that "seriously impair[ed] physical functioning and involve[d] the loss or impairment of bodily function," as Blahut contends are required.
The Attorney General cites two decisions that found substantial evidence of great bodily injury based on similar facts. In People v. Blake (2004) 117 Cal.App.4th 543, the Second District Court of Appeal held that there was substantial evidence that a defendant who sprayed the victims with pepper spray used a "deadly or dangerous weapon" under section 12022, subdivision (b). (Blake, at p. 559.) Relying on case law requiring that a "deadly or dangerous weapon" be "capable of inflicting great bodily injury," Blake concluded that the defendant's pepper spray "was capable of, and did, inflict serious bodily injury in the present case," because the evidence showed "the victims suffered substantial, though transitory, respiratory distress, burning sensations[,] and blindness." (Id. at pp. 556, 559.) Similarly, in People v. Wallace (1993) 14 Cal.App.4th 651, Division Three of this court held there was substantial evidence that one of the defendant's victims suffered great bodily injury under section 12022.7 where the defendant sprayed her with "an insecticide-like substance [that] caused 'really, really bad' burning in her eyes, vagina, and anus for 24 hours." (Wallace, at pp. 665-666.) These decisions support our conclusion that there was sufficient evidence Doug S. experienced serious bodily injury.
Blahut cites a number of decisions upholding findings of serious bodily injury or great bodily injury where, he argues, the injuries at issue "far surpassed [Doug S.'s] painful yet transitory symptoms." "When we decide issues of sufficiency of evidence, comparison with other cases is of limited utility, since each case necessarily depends on its own facts." (People v. Thomas (1992) 2 Cal.4th 489, 516.) To the extent Blahut suggests that an injury must last for a particular period to meet the statutory definition, he is mistaken. In Escobar, the Supreme Court rejected case law interpreting great bodily injury to require "that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function," discerning no support for such an interpretation in the statutory language requiring a "significant or substantial" injury. (Escobar, supra, 3 Cal.4th at pp. 749-750.) Here, too, there is nothing in the phrase "serious impairment of physical condition" that requires an injury to be of particular duration. Indeed, "loss of consciousness," one of the examples of serious bodily injury listed, can be quite short, lasting for only minutes or even seconds. In any case, Doug S. was blinded for minutes and his pain lasted for days, a duration that was hardly negligible.
Blahut also relies on two decisions in which he claims "the victims, like [Doug S.], endured traumatic experiences with temporary physical consequences" that were determined not to rise to the level of great bodily injury. Neither decision assists Blahut. The first, People v. Covino (1980) 100 Cal.App.3d 660, addressed whether there was sufficient evidence to support the defendant's conviction for assault with force likely to cause great bodily injury under section 245, subdivision (a). (Covino, at pp. 664, 667.) The defendant was observed "squeezing" the neck of the victim, who "appeared to be gasping and choking, her tongue protruding about an inch and her eyes bulging and her face red." (Id. at pp. 664-665.) After the incident, she had "redness on her chest and back. Months later she complained of pain in her neck." (Id. at p. 665.) Division Three of this court concluded that although "[i]t does appear to be the case that [the victim] did not suffer great bodily injury[,] . . . the . . . testimony as to the symptoms she exhibited would support a reasonable inference by a rational trier of fact that the force of [the defendant's] assault, the choking, was likely to produce a serious injury." (Id. at pp. 667-668.)
Covino's statement that the victim did not experience great bodily injury was dicta. Moreover, Covino was decided before Escobar overturned the then-prevailing Supreme Court case that incorrectly interpreted section 12022.7 to require a protracted or permanent injury. (Escobar, supra, 3 Cal.4th at pp. 747-750, discussing People v. Caudillo (1978) 21 Cal.3d 562.) Covino's passing observation thus carries little if any force on the issue of what constitutes great bodily injury. And finally, redness and neck pain are not comparable to Doug S.'s injuries, which were significantly more painful and incapacitating.
The second decision Blahut cites, Conservatorship of Lee C. (2017) 18 Cal.App.5th 1072, addressed whether a conservatee's "pending felony charge for corporal injury on a cohabitant" qualified as "a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person" such that it justified the conservatorship. (Welf. & Inst. Code, § 5008, subd. (h)(1)(B)(i); Lee C., at pp. 1077, 1095-1096.) The evidence from the preliminary hearing in the criminal case demonstrated that the conservatee "put a dog leash on his victim, tightened it until she had trouble breathing, and dragged her 40 to 50 feet. The assault caused pain and left a raised welt on her neck." (Lee C., at p. 1096.) Rejecting the Public Guardian's claim that these facts were "insufficient to show great bodily injury or a serious threat to the well-being of another," the Court of Appeal explained, "While choking alone may be insufficient to establish great bodily injury, it is sufficient to support a finding of force likely to cause great bodily injury. [Citation.] Because the victim could easily have suffered a serious injury, a trier of fact could find [the conservatee's] actions in both dragging and choking his victim presented a serious threat to his victim's well-being." (Ibid.) Again, the observation about the meaning of great bodily injury was dicta, and a welt on one's neck is significantly less serious than the injuries Doug S. experienced.
Blahut also claims that his battery conviction must be overturned because "the record is devoid of evidence that [Doug S.] suffered any injury reflecting a degree of brutality or violence substantially beyond that necessarily present in being exposed to bear repellant." Blahut derives this requirement from case law interpreting section 12022.7, which establishes sentencing enhancements for the infliction of great bodily injury in the course of a felony so long as "infliction of great bodily injury is [not] an element of the offense." (§ 12022.7, subd. (g).) For example, in Escobar, where the underlying felony was rape, the Supreme Court upheld the jury's great-bodily-injury finding because "extensive bruises and abrasions over the victim's legs, knees[,] and elbows, injury to her neck[,] and soreness in her vaginal area of such severity that it significantly impaired her ability to walk" were "not the type of injuries 'routinely associated with rape,' but reflect a degree of brutality and violence substantially beyond that necessarily present in the offense." (Escobar, supra, 3 Cal.4th at p. 750.)
We will assume that battery with serious bodily injury under section 243, subdivision (d), requires a degree of brutality and violence substantially beyond that necessarily present in the offense of simple battery. (See People v. Longoria (1995) 34 Cal.App.4th 12, 16.) Blahut, however, argues that the relevant question is whether the crime "reflect[s] brutality or violence beyond that inherent in exposure to bear repellent." (Italics added.) But the requirement of "serious bodily injury" was attached to the battery charge, not the tear-gas charge involving Doug S., and use of bear repellent was merely the means of inflicting injury, not the crime itself. If Blahut were correct, it would mean that whether "serious bodily injury" resulted from a battery would depend on the mode of attack used, an interpretation we reject. In short, his claim of insufficient evidence fails.
C. Blahut's Claim that He Received Ineffective Assistance of Counsel Lacks Merit.
Finally, Blahut contends that his trial counsel rendered ineffective assistance by failing to present evidence that bear repellent "is much weaker than the pepper spray designed for use on humans." According to Blahut, had counsel presented such evidence, it was reasonably probable that he would not have been convicted of battery with serious bodily injury. We disagree.
The label on the can of bear repellent Blahut used showed that the spray was made of "2.0% capsaicin and related capsaicinoids," the active ingredient. The label warned that the bear repellent could "cause irreversible eye damage" if sprayed at a human from close range. In closing argument, the prosecutor repeatedly emphasized that the substance "was designed to take down bears" and could permanently impair eyesight, implying it was more dangerous than "[pepper] spray like what the police carry or [a] can of [pepper] spray like what you can get on a key chain to carry around town."
One of the police officers who responded to the scene described his experience of being pepper sprayed in the eyes as part of his training. He testified that it was "[v]ery painful" and he was unable to open his eyes for about five minutes, but the pain was gone within 10 to 15 minutes.
According to Blahut, however, "[p]epper sprays designed for use on humans, such as the type typically used by law enforcement," are in fact stronger than bear repellent. Blahut claims that "[h]ad counsel adequately researched the substance [he] was charged with using to commit multiple felonies, [counsel] would have discovered that it is heavily regulated, may only contain between 1.0-2.0% of its active ingredient, is not designed to 'inflict serious pain,' and . . . , while it may 'have some burning and irritating effects' on humans, . . . is not nearly as strong as the pepper spray designed for use on humans, which typically contain[s] 10% or more of the active ingredients."
The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's performance was deficient," such that "counsel was not functioning as the 'counsel' [constitutionally] guaranteed," and "that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Centeno (2014) 60 Cal.4th 659, 674.) Thus, a defendant must show both that (1) "counsel's performance . . . fell below an objective standard of reasonableness under prevailing professional norms" and (2) there was "a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
We need not determine whether trial counsel's failure to present additional evidence of bear repellent's properties constituted deficient performance, because Blahut fails to demonstrate the requisite prejudice. (See Strickland v. Washington, supra, 466 U.S. at p. 697 [better course is to avoid determining whether counsel's performance was deficient "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice"].) As the Attorney General observes, even if the jury had heard evidence that bear repellent was weaker than pepper spray, that evidence "would not have undercut any of [the] evidence about the actual harm caused to [Doug S.]," which was the focus in determining whether Blahut inflicted serious bodily injury. At least under these circumstances, where the extent of Doug S.'s injuries and the fact that the bear repellent caused them were undisputed, there is no reasonable probability that evidence of the spray's relative potency would have resulted in a better outcome for Blahut.
Because we conclude that the omission of additional evidence about bear repellent's properties was harmless, by separate order on this date in case No. A159826 we also deny Blahut's petition for a writ of habeas corpus, which is premised on the same supposedly deficient performance by his trial counsel. --------
III.
DISPOSITION
The two convictions for use of tear gas under Penal Code section 22810 are reversed, and the remaining convictions are affirmed. The sentence is vacated, and the matter is remanded for resentencing.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Margulies, J. /s/_________
Sanchez, J.