Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR240917
Reardon, J.
A jury found appellant Walter Lee Cole guilty of assault with a deadly weapon or by means of force likely to produce great bodily injury by a life prisoner (count 1 - Pen. Code, § 4500); felony assault (count 2 - § 245, subd. (a)(1)); and possession of a deadly weapon while confined in a penal institution (count 3 - § 4502, subd. (a)). A prior serious felony conviction under section 667, subdivision (a) was found true, as well as a “strike” under section 667, subdivisions (d)-(e). Appellant was sentenced to nine years to life doubled to 18 to life as a second striker on count 1; three years doubled to six on count 2, then stayed pursuant to section 654; and three years doubled to six consecutive on count 3. An additional five years was imposed for appellant’s prior serious felony.
All section references are to the Penal Code.
I. FACTS
Mark Statler and Lamar Williams were correctional officers on duty at California State Prison, Solano, in Vacaville on October 27, 2006. They were monitoring the incoming flow of inmates from yard call. Suddenly, Statler saw appellant run up behind inmate Lucas, who was seated at a table, and begin striking Lucas with a closed and gloved fist. Appellant was a life prisoner housed in building 14. Williams, who did not see appellant approach Lucas, heard an “unusual noise,” turned around, and saw appellant punching Lucas from the front.
Both officers activated their handheld alarms and approached. Appellant continued to assault Lucas, using only his right hand and landed numerous blows. Lucas did not defend himself, but simply fell to the ground.
As appellant stood over Lucas, Statler ordered him to get down and pointed a pepper spray canister at appellant’s face. Williams saw a knife-like weapon in appellant’s right hand and shouted “weapon” to Statler. Appellant eventually complied with Williams’s order to get down. In doing so, appellant dropped the weapon on the ground. Appellant was handcuffed and removed from the scene. There was blood on the ground, the weapon, and a glove as well.
Michelle Morin was a prison nurse summoned to the scene. Lucas was bleeding, clutching his chest, and said that he had been stabbed. He complained of pain in his chest and arms. He had three puncture wounds on his upper torso; specifically on his right upper arm, the right side of his back, and on his left elbow. The injuries were consistent with a knife attack. Each injury was at least one-quarter to one-half inch deep.
II. DISCUSSION
A. The trial court’s error in giving conflicting instructions on the intent required for a violation of section 4500 (assault by a life prisoner) was not prejudicial.
Appellant initially contends that the trial court erred in tying the “general intent” instruction (CALJIC No. 3.30) to the “specific intent” crime of aggravated assault by a life prisoner (CALJIC No. 7.35). The Attorney General concedes that this was error. (See People v. Jeter (2005) 125 Cal.App.4th 1212, 1216-1217.) However, it is argued that the error was harmless beyond a reasonable doubt. We agree.
The record reflects that the trial court instructed the jury on count 1 (assault by a life prisoner) in the language of CALJIC No. 7.35 as follows: “The defendant is accused, in Count 1, with having violated section 4500 of the Penal Code, a crime. Every person, while undergoing a life sentence, who is sentenced to a state prison within this state, and who, with malice aforethought, commits an assault upon the person of another, with a deadly weapon or instrument, or by means—or by any means of force likely to produce great bodily injury is guilty of a violation of Penal Code Section 4500, a crime. [¶] . . . [¶] In order to prove the crime charged, each of the following elements must be proved: [¶] 1. A person was assaulted; [¶] 2. The assault was committed with a deadly weapon or instrument, or by means of force likely to produce great bodily injury; [¶] 3. The assault was committed by a person while undergoing a sentence of life imprisonment, having been sentenced to life imprisonment within the state, and [¶] 4. The assault was committed with malice aforethought. [¶] In order to prove that an assault was committed, each of the following elements must be proved: [¶] 1. A person willfully committed an act which, by its nature, would probably and directly result in the application of physical force on another person; [¶] 2. The person committing the act was aware of facts that would lead a reasonable person to realize that as a direct, natural, and probable result of this act, that physical force would be applied to another person, and [¶] 3. At the time the act was committed, the person committing the act had the present ability to apply physical force to the person of another.”
The court then defined “malice aforethought” (CALJIC No. 8.11): “Malice may be either express or implied. Malice is expressed when there is manifested an intention unlawfully to kill a human being. Malice is implied when (1) the killing resulted from an intentional act[,] (2) the natural consequences of the act are dangerous to human life, and (3) the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life. [¶] When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. [¶] The mental state constituting malice aforethought does not necessarily require any ill-will or hatred of the person killed. [¶] The word ‘aforethought’ does not require deliberation or lapse of considerable time. It only means that the required mental state must precede rather than follow the act.” In her argument to the jury, the prosecutor stressed the necessity of the jury finding “malice aforethought” as a requisite element of assault by a life prisoner: “Committed with malice aforethought—malice aforethought is one of those things that all of us, who have ever watched Perry Mason or any cops and robbers court shows, think we know what it is. What it is for purposes of this charge is a specific legal concept. So we’re going to talk about that for a minute. [¶] Malice aforethought represents . . . a mental attitude which can be expressed by a defendant either expressly, in other words, by his statement, . . . or by his actions. . . . We do not have a statement in front—as evidence, indicating what this defendant’s mind-set was when he ran up behind the victim and punched him repeatedly, wildly, with a weapon hidden in his right hand, puncturing him at least three times, but . . . we can look at what he did and decide whether that is evidence of his conscious disregard for the—for the safety—for the life of his targeted victim. [¶] It’s the People’s position—it’s my position, as the representative of the People, that the defendant showed that malicious mind-set necessary to establish malice aforethought, this legal term, by his using a stabbing weapon, aiming at the midsection, where he could just as easily have penetrated through the rib cage, stabbed the guy in the lungs, the liver, or whatever those other vital organs are that are housed by our rib cage.”
In the course of his instructions, the trial court erroneously gave CALJIC No. 3.30 on “general criminal intent” as to “Counts 1, 2 and 3 . . . .”
“When reviewing ambiguous instructions, we inquire whether the jury was ‘reasonably likely’ to have construed them in a manner that violates the defendant’s rights. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 873.) In our review, we must look to the instructions as a whole and the entire record of trial, including the arguments of counsel. (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Given the record in this case, it appears beyond a reasonable doubt that the complained of error did not contribute to the verdict obtained. (People v. Jeter, supra, 125 Cal.App.4th at p. 1217.)
The jury was correctly instructed on the elements of section 4500, including the element of “malice aforethought” and the definition of “malice.” The prosecuting attorney, in her argument to the jury, stressed the need for the jury to find “malice aforethought” in order to convict and that “defendant showed that malicious mind-set necessary to establish malice aforethought . . . .” Appellant’s vicious and unprovoked stabbing of Lucas clearly supported the jury’s finding of malice. It is simply inconceivable that the jury would ignore the court’s instructions on malice aforethought and the prosecutor’s emphasis on this element in favor of the generic general criminal intent instruction erroneously delivered with respect to counts “1, 2 and 3 . . . .”
We conclude that it is not reasonably possible that the complained of error prejudiced appellant.
B. Appellant’s conviction on count 2, a violation of section 245, subdivision (a)(1), must be reversed as it is a lesser and included offense of count 1.
Appellant contends that his conviction of felony assault (§ 245, subd. (a)(1)) in count 2 must be reversed as it is a lesser and included offense of count 1, assault by a life prisoner (§ 4500). He is correct and the Attorney General so concedes, as did the prosecuting attorney. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 749.)
C. Imposing sentence on both count 1 and count 3 did not violate section 654.
Appellant finally contends that his six-year sentence on count 3, custodial possession of a weapon (§ 4502), violated the multiple punishment prohibition of section 654, and must be stayed. He argues that there was no evidence that he possessed the weapon “at any time other than during the assault.”
The issue of whether a defendant entertained multiple criminal objectives that were independent and not incidental to each other is a question of fact for the trial court to decide, which finding will be upheld on appeal if supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Here, there is substantial evidence to support the trial court’s decision to impose sentence on both the assault by a life prisoner (count 1) and custodial possession of a weapon (count 3). Prior to the assault, appellant obviously possessed the weapon when he ran to attack Lucas. This separate and distinct antecedent possession of the weapon justified separate punishment and does not violate section 654. (People v. Simon (1989) 208 Cal.App.3d 841.) In Simon, when the appellant was convicted of assault with a firearm and possession of a machine gun, the court held: “Separate punishment may be imposed for each of these convictions since there is substantial evidence of possession antecedent to the assault. [Citation.]” (Id. at p. 852.)
III. CONCLUSION
The judgment of conviction on count 2 is reversed. In all other respects, the judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.