Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F08903494. James R. Opplinger, Judge.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Ernest Raymond Rodriguez appeals from a sentence of 12 years in state prison for assault with a deadly weapon, possession and transportation of cocaine and heroin, hit and run driving, and driving under the influence of drugs. He contends that there was insufficient evidence to support his conviction for assault with a deadly weapon because a car key is not inherently dangerous and it was not used in a manner likely to produce death or great bodily harm in this case. He also contends that there was instructional error. Finally, he requests that this court correct the abstract of judgment. For the following reasons, we affirm the conviction and remand to the superior court to correct the abstract of judgment.
STATEMENT OF THE CASE
On July 21, 2008, the Fresno County District Attorney filed an information charging appellant with assault with a deadly weapon, an object (Pen. Code, § 245, subd. (a)(1); count 1), transportation of a controlled substance, cocaine (Health & Saf. Code, § 11352, subd. (a); count 2), transportation of a controlled substance, heroin (Health & Saf. Code, § 11352, subd. (a); count 3), possession for sale of a controlled substance, cocaine (Health & Saf. Code, § 11351; count 4), possession for sale of a controlled substance, heroin (Health & Saf. Code, § 11351; count 5), hit and run driving (Veh. Code, § 20002, subd. (a); count 6), and misdemeanor driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a); count 7). As to counts 1 through 5, the information also alleged that appellant had previously suffered a felony conviction for battery resulting in great bodily injury (§ 243, subd. (D)), a serious and violent felony (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served four separate prior prison terms following felony convictions (§ 667.5, subd. (b)). As to counts 2 through 5, the information further alleged that appellant had previously suffered a prior conviction within the meaning of Health and Safety Code section 11370.2.
All further section citations are to the Penal Code unless otherwise stated.
On July 22, 2008, appellant waived reading of the information, entered not guilty pleas to all the counts, and denied the special allegations.
On December 4, 2008, the trial court granted appellant’s motion to bifurcate the trial on the special allegations. The next day, the court empanelled the jury. On December 9, 2008, the trial court denied appellant’s motion for acquittal on count 1 pursuant to section 1118.1. The following day, the jury convicted appellant on all charges. The jury returned a separate verdict for each count.
On December 19, 2008, the trial court found that appellant had served four separate prior prison terms following felony convictions, but found it not true that appellant had previously suffered a conviction for a serious and violent felony.
On March 12, 2009, the trial court denied appellant’s application for probation and his motion requesting that the court exercise its discretion to reduce count 1 to a misdemeanor conviction pursuant to section 17, subdivision (b). The court imposed a term of 12 years in state prison. Appellant received 435 days total presentence custody credit.
On the same date, appellant filed a timely notice of appeal.
FACTS
On May 26, 2008, at approximately 6:00 p.m., Brian Rhea was at home fixing dinner when he heard what sounded like a traffic accident. When he looked out his dining room window, he saw that a blue Jaguar car had collided with a light post. The impact had moved the post forward several feet. Rhea saw appellant exit the driver’s seat of the car and walk from the vehicle down the middle of the street.
Rhea opened his front door and yelled, asking appellant if he was “okay.” Appellant looked over his shoulder at Rhea and took off in a run. Rhea started following appellant and yelled at him to come back. Appellant continued walking away. Other motorists who had witnessed the accident gathered and someone yelled “Don’t let that guy get away.”
Rhea approached appellant and told him to come back to the car. Appellant said that he could not because he had outstanding traffic tickets. The other motorists tried to prevent appellant’s escape by driving their cars into his pathway. Appellant squeezed between the cars and started running. Rhea continued to follow appellant until appellant turned and confronted Rhea with his fists clenched and raised in a fighting stance. Rhea told appellant that he did not want to fight. Appellant started running away. Rhea followed him and told appellant that he needed to stop because appellant would not be able to get away since several other people had now joined the effort to stop him from leaving the scene.
Appellant turned around and continued running, and Rhea again followed. After appellant had gone about 300 feet, he stopped again, turned toward Rhea, and took a “swing” at Rhea’s face with his right arm. Rhea leaned back, dodged the blow, and saw an opportunity to grab appellant by the back of his polo shirt. Rhea grabbed appellant by the collar of his shirt and tried to pull him to the ground, but appellant’s shirt ripped and almost came off. As Rhea continued to hold onto appellant’s shirt, appellant “chopped” at Rhea’s arm with his hand, which was clenched into a fist. At this time, Rhea did not notice anything in appellant’s hand. However, after the third blow by appellant, Rhea saw blood fly off his arm and realized that he had been injured.
Rhea tugged on appellant’s shirt and managed to pull and throw appellant to the ground. As appellant fell, Rhea saw money and a bag with some white powder in it fall out of appellant’s pockets. Two bystanders restrained appellant on the ground for about two minutes until law enforcement arrived. After the encounter, Rhea noticed a puncture wound on the inside of his elbow, scrapes on his forearm, and another puncture wound near his wrist. He received first aid at the scene, and was later transported to the emergency room for further treatment and a tetanus shot.
Fresno Police Officer Matthew Vincent was dispatched to the scene of the traffic accident. On the way, police dispatch updated him that there was a struggle involving appellant. When Officer Vincent arrived on the scene, he saw that several persons were detaining appellant. As he approached, he noticed appellant lying on the ground and that appellant had a long car key or vehicle key in his hand. Officer Vincent estimated that the key was between one and one and one-half inches long. Appellant was holding the key like he would hold a ski pole. “The key was in the palm of his hand. It was a fist with the key protruding in the bottom of his hand.” The car key was admitted into evidence at trial.
The officer also saw a tinfoil ball in appellant’s ear canal and more tinfoil balls and paper bindles in his pocket and in the area around his person. The tinfoil balls contained tar heroin and the paper bindles contained powdered cocaine. In total, law enforcement collected 83 individual doses of cocaine and 101 individual doses of heroin. Appellant also possessed a large amount of cash in bills of various denominations.
Based on his training and experience, Officer Vincent opined that appellant had possessed the cocaine and heroin for purposes of sale, rather than for personal use, because of the quantity of individually-packaged narcotics. Officer Vincent also believed that appellant had been under the influence of a narcotic or alcohol at the time of the incident because of appellant’s slurred speech and erratic behavior.
Appellant was taken from the scene by ambulance to the hospital. His blood was drawn by a lab technician when he arrived at the hospital. Subsequent testing of appellant’s blood showed the presence of cocaine and methamphetamine. Appellant had not recently used heroin. The testing indicated that appellant was likely under the influence of methamphetamine at the time his blood was drawn. Furthermore, the reports of appellant’s behavior during and after the accident were consistent with the “up” phase of methamphetamine.
Fresno Police Officer Art Rodriguez was dispatched to the hospital to interview appellant. After waiving his Miranda rights, appellant told the officer that he “collided his vehicle into a pole near the intersection of Barstow and First while driving approximately 80 miles an hour.” Appellant “indicated he ran over something slippery which caused him to lose control and strike the pole.” Appellant also said that “he was struggling with some of the citizens holding him down and he indicated he was holding what was described as a large Jaguar key in his left hand and confirmed it was possible that that key might have poked or stabbed one of the citizens during that struggle.” Appellant claimed that he did not know about the narcotics that had been found in his vehicle. He also told the officer that he did not sell drugs, but admitted that he was a drug addict.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
A. Whether A Car Key Is A Deadly Weapon
Appellant first contends that there was insufficient evidence to support his conviction for assault with a deadly weapon. Essentially, appellant contends that no reasonable jury could find, from the evidence presented about how the car key was used in this case, that the car key was a deadly weapon. We disagree.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)
“As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.’ [Citation.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.) It is a factual question whether an implement used in an assault is a deadly weapon. (People v. Raleigh (1932) 128 Cal.App. 105, 108-109.) Objects that are not inherently dangerous “may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar, supra, 16 Cal.4th at p. 1029.) “Great bodily injury is significant or substantial injury. [Citation.] Permanent or protracted impairment, disfigurement, or loss of function, however, is not required. [Citation.]” (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.) “Although neither physical contact nor injury is required for a conviction, if injuries result, the extent of such injuries and their location are relevant facts for consideration.” (Id. at p. 1086.)
In this case, the record shows that appellant and Rhea were involved in a confrontation. Appellant had taken a swing at Rhea with his right arm, Rhea had grabbed appellant by the shirt, and then appellant had stabbed or poked Rhea’s right arm three times with a car key that appellant held in his right hand. Appellant had the car key in his right hand, with the hand clenched in a fist and the key protruding from the bottom of his fist. Rhea suffered puncture wounds on the inside of his elbow and near the wrist of his right arm. The puncture wounds caused blood to fly off from Rhea’s arm. Based on this record, the jury could convict appellant of assault with a deadly weapon.
In People v. Russell (1943) 59 Cal.App.2d 660, 665, the appellate court sustained a conviction for assault with a deadly weapon where the victim suffered a jagged wound to his cheek which was caused by a two and one-half inch fingernail file during a fight. Similarly, in this case, the victim suffered two puncture wounds caused by a car key that was used by appellant during a confrontation. Moreover, unlike the evidence presented in People v. Beasley, supra, 105 Cal.App.4th 1078, here, the jury was presented with sufficient evidence to sustain a conviction. First, the car key was admitted into evidence which allowed the jury to determine the shape and composition of the car key. Second, there was substantial evidence that appellant used the car key with great force. He held the car key firmly in his right hand and the victim suffered puncture wounds instead of just bruises. As the prosecutor argued, if the car key had punctured a vein, the victim likely would have suffered great bodily injury. Finally, there was evidence from which the jury could conclude that appellant indiscriminately attacked appellant with the car key and did not focus on any specific area of the body. Rhea suffered puncture wounds near his wrist and near his elbow. There is also evidence that appellant may have swung at Rhea’s head with the car key. Although appellant claimed he held the car key in his left hand, Rhea testified that the car key was in the right hand. Also, very little time passed between when appellant swung at Rhea with his right arm and when he stabbed Rhea’s right arm. From this record, a jury could reasonably infer that appellant had the car key in his right hand when he swung his right arm at appellant. In making this observation, we are not concluding that the swinging of the right arm at Rhea’s head, in and of itself, was sufficient to support a conviction for assault with a deadly weapon. However, appellant was able to create puncture wounds by making a chopping motion with the car key, and, if that same motion was directed at the face or similar vulnerable areas such as the throat, the car key likely would have produced great bodily harm. Thus, the manner in which appellant used the car key in this case -- holding it firmly, attacking indiscriminately, and using sufficient force to cause puncture wounds -- was legally sufficient for a jury to convict appellant of assault with a deadly weapon.
B. Unanimity Instruction
Appellant next contends that the trial court committed reversible error by failing to give a unanimity instruction or to advise the jury of an election of acts on count 1. According to appellant, some jurors may have convicted him for assault with a deadly weapon because he swung at Rhea’s head with the car key while other jurors may have convicted him based solely on the fact that he stabbed Rhea in the arm. In closing argument, the prosecutor did not mention the swing to the head and only argued that the stabs to the arm would have caused serious bodily injury if a vein was punctured. Thus, appellant contends that the trial court should have instructed the jury that the prosecutor had elected to base the charge of assault with a deadly weapon exclusively on the “chopping incident” and not the “swinging incident.” We disagree.
In People v. Russo (2001) 25 Cal.4th 1124, the California Supreme Court explained that, “[i]n a criminal case, a jury verdict must be unanimous. [Citations.] … Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Id. at p. 1132.)
In People v. Beardslee (1991) 53 Cal.3d 68, the Court stated that “‘[a] unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.’ [Citations.]” (Id. at p. 93.) Furthermore, no unanimity instruction is required where defendant’s acts constituted a single continuous course of conduct, “whose acts were so closely connected in time as to form part of one transaction. [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 423.)
Here, the act of swinging the arm at Rhea’s head and the acts of chopping at Rhea’s arm formed one single discrete event, occurring in the same place and over a very short and continuous time period. Rhea testified that appellant swung at his head, Rhea grabbed at appellant’s shirt, and then appellant stabbed him several times. It is reasonable to conclude that these events constituted a single course of action -- an assault against Rhea. Thus, no unanimity instruction was required.
C. Motion For Acquittal
Appellant also contends that the trial court erred in denying his motion for a judgment on acquittal under section 1118.1 on the assault with a deadly weapon charge at the close of the prosecution’s case. Appellant’s argument is based upon the fact that there was legally insufficient evidence to support the finding that the car key was a deadly weapon as that term is defined in section 245, subdivision (a)(1). Because we have concluded that the car key was a deadly weapon for the purposes of section 245, subdivision (a)(1) since it was used in a manner likely to produce great bodily injury, we also conclude that the trial court did not err in rejecting appellant’s motion for acquittal.
D. Combined Instructions
Appellant next contends that the trial court erred in combining jury instructions for counts 2 and 3 (transportation of cocaine and methamphetamine respectively) and for counts 4 and 5 (possession of cocaine and heroin respectively). Specifically, he claims that the trial court’s use of the “‘and-or’ in the preamble to the recitation of the elements of the offense … implies that the jury can convict on both counts if it finds the elements satisfied as to only one of the charged controlled substances.” We disagree.
Initially, we note that appellant has forfeited his claim of instructional error by failing to timely object during the trial. (People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Even if appellant has not forfeited the claim, we conclude that there was no error.
When considering a claim that the trial court improperly instructed the jury, a reviewing court must determine whether there is a reasonable likelihood the jury construed or applied the instructions in an objectionable fashion. (People v. Osband (1996) 13 Cal.4th 622, 685-686.) We review all instructions given, not just the instruction complained of, to determine whether the jury charge as a whole is correct. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1249.) Juries are presumed to follow the trial court’s instructions, unless the record affirmatively indicates otherwise. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.).
In this case, the trial court instructed the jury on counts 2 and 3 of the information, the crime of transportation of a controlled substance, as follows:
“[T]he People must prove: [¶] One, the defendant transported a controlled substance. [¶] Two, the defendant knew of its presence. [¶] Three, the defendant knew of the substance[’]s nature of character as a controlled substance. [¶] Four, that controlled substance was heroin and-or cocaine. [¶] And I say heroin and-or cocaine because one count charges heroin and one cocaine. [¶] Five, the controlled substance was in a useable amount.”
Using parallel syntax, the trial court similarly instructed the jury as to the elements to prove counts 4 and 5, the crime of illegal possession for sale of a controlled substance, referring to heroin and cocaine.
The trial court also instructed the jury on its duty to return separate verdicts for each count. The jury did as instructed. It returned guilty verdicts for each count on separate verdict forms.
On this record, we conclude that there was no instructional error. In the context of the entire jury instructions, no reasonable jury would have misconstrued or misapplied the combined jury instructions to convict appellant for both transporting or possessing cocaine and heroin where it found that he only transported or possessed one of the controlled substances. The trial court stated that, it was using “heroin and-or-cocaine because one count charges heroin and one count charges cocaine.” The jury also was admonished that it had to return separate verdicts, and it returned verdicts on separate verdict forms. Thus, we reject appellant’s claim of instructional error.
E. Corpus Delicti Rule
Appellant also contends that the trial court committed reversible error by instructing the jury with CALCRIM No. 359 on the assault with a deadly weapon offense because the instruction impermissibly lowered the prosecution’s burden of proof where appellant provided only a partial confession rather than a confession of every element of the assault offense. We disagree.
Again, we note that appellant has forfeited his claim of instructional error by failing to timely object. (People v. Rundle, supra, 43 Cal.4th 76, 151.) In any case, we conclude that there was no instructional error.
“In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself -- i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.) As the California Supreme Court noted, the rule requiring some independent proof of the corpus delicti is not mandated by any statute and has never been deemed a constitutional guaranty, although it has roots in the common law. (Id. at p. 1169.)
Here, the trial court instructed the jury as follows:
“The defendant may not be convicted of any crime based on his out-of-court statement alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crime or a lesser included offense was committed. That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] The identity of the person that committed the crime may be proved by the defendant’s statements alone. [¶] You may not convict a defendant unless the People have proved his guilt beyond a reasonable doubt.” (Italics added.)
Appellant contends that allowing “slight” evidence to support a conviction on assault with a deadly weapon in this case impermissibly lessened the prosecution’s burden to prove all elements of the crime beyond a reasonable doubt in this case. While we agree with appellant that allowing slight evidence to support a conviction violates a defendant’s right to due process, we disagree that CALCRIM No. 359 permits this result.
CALCRIM No. 359 instructs a jury that it may take into consideration out-of-court admissions by defendants only if there is some other independent evidence to support the charged offense. The challenged sentence in CALCRIM No. 359 restates well-established law that this independent evidence need only be “slight” because an out-of-court admission may, in and of itself, constitute proof beyond a reasonable doubt that a defendant committed a crime. CALCRIM No. 359 is thus a prophylactic jury instruction to prevent convictions based solely on admissions. In the context of the instruction, no reasonable jury would believe that the challenged sentence permits it to convict appellant of assault with a deadly weapon based solely on the slight evidence. Rather, CALCRIM No. 359 instructs the jury that it may review both the out-of-court statements and any other evidence, even if slight, to determine whether “the People have proved [defendant’s] guilt beyond a reasonable doubt.” We conclude, in contrast with appellant, that this last caution cures any juror misunderstanding because it reaffirms previous jury instructions that the prosecution’s burden of proof on each element of the crime is proof beyond a reasonable doubt.
F. Abstract of Judgment
Finally, appellant contends that the abstract of judgment must be amended to reflect convictions for “transportation” of a controlled substance rather than for “transportation for sale” of a controlled substance because the offense of “transportation for sale” of a controlled substance does not exist. The People agree that the abstract should be amended to reflect the offenses as they were charged in the information and as the trial court instructed the jury. Thus, we will remand to the superior court to correct the abstract of judgment.
DISPOSITION
The case is remanded to the superior court to correct the abstract of judgment to reflect that the convictions on counts 2 and 3 are for “transportation of a controlled substance” and not for “transportation for sale” of a controlled substance. As corrected, the judgment is affirmed.
WE CONCUR: Levy, J., Dawson, J.