Opinion
C053662
2-13-2009
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ELBERT STEELE, Defendant and Appellant.
Not to be Published
A jury convicted Kenneth Elbert Steele of assault, assault by means of force likely to produce great bodily injury, criminal threats and attempted false imprisonment. (Pen. Code, §§ 240, 245, subd. (a)(1), 422, 664/236; further unspecified section references are to this code.) The trial court sentenced defendant to prison for three years eight months, and he timely filed this appeal.
In our original opinion we reversed the felony assault conviction, concluding no substantial evidence showed that defendant had the "present ability" to ignite oven gas and thereby injure the victim. The California Supreme Court remanded the case with directions to reconsider in light of its subsequent opinion in People v. Chance (2008) 44 Cal.4th 1164 (Chance). On reconsideration in light of Chance, we conclude substantial evidence supports the felony assault conviction. We reject defendants other claims and affirm the judgment in full.
BACKGROUND
The victim was defendants "on and off again" girlfriend for about three years. For a while they lived together in the victims "10 by 54" mobile home, at the Almond Grove Mobile Home Park. As late as Christmas 2005, the victim hoped the relationship would work out. They were not living together and the victim had moved out of the mobile home, although she kept kittens there that she took care of. On December 28, 2005, while the victim was at the mobile home, defendant arrived; when she asked him if he had been using drugs, he became enraged. He pinned her to the bed "and tried to suffocate me with his hand over my mouth and pinching my nose." He said "He was going to kill me and then himself[,]" and she believed him, because she was fighting to breathe and praying.
The victims memory of the details and sequence of what happened after that initial instance of suffocation was uncertain, but she described the following events:
At some point defendant turned on the oven gas "and left the door open to try to kill both of us, and he was later going to ignite it." The victim smelled the gas and defendant said "he would be able to blow us up." She ran outside but defendant grabbed her and carried her back into the mobile home. During this time her face was "smashed" into a van seat on her patio, but according to her testimony defendant did not cause this injury. She was pinned to the bed and could smell the gas. Defendant told her he was waiting for it to fill the mobile home "and then he was going to ignite it." He held up a lighter "and showed me that it didnt make a flame." When "he felt that he waited long enough, he lit it and it didnt do anything." The victim testified some of the windows were open; "Its very well ventilated so luckily it [i.e., the concentration of flammable gas] wasnt enough to do any damage."
At some point the victim reached a telephone but defendant broke it in half.
Defendant had a knife, and cut or scratched her neck "just a small little bit, not a lot, and then he handed it to me and asked me to put it into him." "He said he was going to kill me and kill himself." She believed him. He also took a rope, "tied one end with a noose knot, a slip knot type thing, and one on the other end as well and put it both over our heads and said we could go together." He never tightened the knots, and then he simply took the rope off.
Then he tied a plastic bag over her head, "and said just in case he was going to put a second one on and proceeded to do that." The bags were on her head "Long enough for me to feel like I was going to die."
He then wrapped duct tape around her face, hair and head, and she could not breathe. He said "`You wont get through this one to me." Eventually he took the tape off of her.
The next morning, after defendant helped clean "the duct tape glue out of my hair and help clean me up," he let her walk away. He apologized and blamed drugs for his actions. She arranged a ride to a sheriffs station from where she was taken to the hospital by ambulance. While at the hospital she was told her jaw was broken.
Photographs introduced into evidence depict her injuries, including where "he pulled the hair out of my head;" she still had bald spots as a result.
At the time the above events took place, the victim had a restraining order against defendant. Some of the incidents that led her to get the order included defendant pulling her hair out on a prior occasion, cutting her with his fingernail and saying that this would give her hepatitis, pushing her against a wall, and threatening to kill her.
The victim has since met with defendant and received his telephone calls and letters; she still loves him, but is also afraid of him. In one letter he encourages her to seek lenity for him with the prosecutor.
Deputy Gregory Faber, who saw the victim at the station, described her as covered with bruises and cuts over her entire body. She had the sticky remnants of duct tape in her hair, and bald spots that were "red and really irritated." She told Deputy Faber that "once she told [defendant] they were no longer going to be together, thats when he went ballistic on her." At one point the victim said she could "see a flame, didnt know if it was a match[,] lighter or what, appeared [defendant] was trying to ignite the gas."
A couple of boys at the mobile home park heard a woman screaming for help that night, and saw a man hitting her in the face and choking her.
A neighbor of the victim saw defendant with scratches on his face, and defendant told him, "him and his girlfriend got in a fight and that she scratched him."
In 2000, in Placer County, defendant pleaded no contest to inflicting corporal injury on a cohabitant. (Pen. Code, § 273.5.)
Defendant testified that the victim scratched his face when he would not give her the telephone. After she went outside and fell down the stairs, he helped her back into the mobile home. They stopped arguing and went to sleep; when he woke up, he found she had tape in her hair. In the course of helping her clean the tape out of her hair he applied a substance which she said burned her, and she began panicking. Defendant denied putting bags on the victims head, touching her throat with a knife, turning on oven gas or trying to light it, wrapping her head with tape, pulling out her hair, slamming her face into a seat, or wrapping rope around her neck or his neck. He admitted he had been served with the restraining order, but claimed the victim told him it had been lifted.
The pleadings, prosecutorial election and verdicts show the following:
Count One, charging felony assault with a deadly weapon, based on defendants act of putting a bag on the victims head — guilty of misdemeanor assault.
Count Two, charging assault with a deadly weapon, based on the use of a knife — not guilty.
Count Three, charging assault by means likely to cause great bodily injury, based on "defendant turning on the gas stove telling [the victim] that he wanted to blow them both up[,]" — guilty.
Count Four, terrorist [sic] threats — guilty.
As originally enacted in 1988, section 422 was placed in title 11.5 of the Penal Code, entitled, "Terrorist Threats." (Stats. 1988, ch. 1256, § 4.) The heading of title 11.5 was amended by Statutes 2000, chapter 101, section 4 to read: "Criminal Threats."
Count Five, false imprisonment — guilty of attempted false imprisonment.
DISCUSSION
I. Substantial Evidence of Felony Assault
Defendant contends no substantial evidence supports his conviction of assault by force likely to cause great bodily injury, because there was no substantial evidence he had the "present ability" to ignite oven gas. We disagree.
"We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) The evidence must be of "ponderable legal significance . . . reasonable in nature, credible, and of solid value[.]" (Estate of Teed (1952) 112 Cal.App.2d 638, 644, quoted with approval by People v. Johnson (1980) 26 Cal.3d 557, 576.)
"`An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (§ 240.) Assault requires the willful commission of an act that by its nature will probably and directly result in injury to another (i.e., a battery), and with knowledge of the facts sufficient to establish that the act by its nature will probably and directly result in such injury." (People v. Miceli (2002) 104 Cal.App.4th 256, 269.)
It is generally the rule that when a defendant points a loaded gun at the ground or away from a victim, he still may have the "present ability" to cause injury. (People v. McMakin (1857) 8 Cal. 547, 548-549 ["when the party draws the weapon, although he does not directly point it at the other, but holds it in such a position as enables him to use it before the other party could defend himself," jury could find assault]; People v. Thompson (1949) 93 Cal.App.2d 780, 782.) In People v. Chance, supra, 44 Cal.4th 1164, the defendant had a gun, loaded but with no round in the chamber, and was lying in wait for a peace officer, but the officer came up behind defendant. (Chance, supra, 44 Cal.4th at pp. 1168-1169.) "Here, defendants loaded weapon and concealment behind the trailer gave him the means and the location to strike `immediately at Sergeant Murdoch, as that term applies in the context of assault. Murdochs evasive maneuver, which permitted him to approach defendant from behind, did not deprive defendant of the `present ability required by section 240." (Id. at pp. 1175-1176.) Chance relied in part on prior cases holding that where a victim ducks or flees to a place of safety before the defendant can fire his gun, he still has the "present ability" to cause injury. (See People v. Raviart (2001) 93 Cal.App.4th 258, 267 [peace officer dived for cover as defendant pointed gun]; People v. Hunter (1925) 71 Cal.App. 315, 319 ["He was endeavoring to take the gun from his sock when his wife thwarted the attempt to kill her by jumping out of the window. Naturally she did not wait to see whether he succeeded in getting hold of the gun or whether he pointed it at her, and it is immaterial whether he did either"].)
In People v. Valdez (1985) 175 Cal.App.3d 103 (Valdez), Valdez fired bullets at a person protected by bulletproof glass. Valdez reviewed a number of authorities discussing the subject of "present ability" and the California Supreme Court quoted Valdez with approval as follows:
"`Nothing suggests this "present ability" element was incorporated into the common law to excuse defendants from the crime of assault where they have acquired the means to inflict serious injury and positioned themselves within striking distance merely because, unknown to them, external circumstances doom their attack to failure. This proposition would make even less sense where a defendant has actually launched his attack—as in the present case—but failed only because of some unforeseen circumstance which made success impossible. Nor have we found any cases under the California law which compel this result. The decisions holding a defendant lacks "present ability" when he tries to shoot someone with an unloaded gun or a toy pistol do not support any such proposition. In those situations, the defendant has simply failed to equip himself with the personal means to inflict serious injury even if he thought he had." (Chance, supra, 44 Cal.4th at p. 1174, quoting Valdez, supra, 175 Cal.App.3d at p. 112.)
"`Once a defendant has attained the means and location to strike immediately he has the "present ability to injure." The fact an intended victim takes effective steps to avoid injury has never been held to negate this "present ability."" ( Chance, supra, 44 Cal.4th at p. 1174, quoting Valdez, supra, 175 Cal.App.3d at p. 113; see also People v. Craig (1991) 227 Cal.App.3d 644, 649-650 [" if a third person prevents the assaultive blow from hitting its mark or the victim outmaneuvers the bullet with a timely duck, the defendant may be guilty of assault. On the other hand, if the defendant aims with a toy gun or attempts to poison with powdered sugar, there can be no criminal assault"].)
In this case, there is sufficient evidence that defendant "equip[ped] himself with the personal means to inflict serious injury" (Valdez, supra, 175 Cal.App.3d at p. 112), that is, he had "the means . . . to strike immediately" (People v. Licas (2007) 41 Cal.4th 362, 370).
The victim was able to smell gas. The jury could presume it was flammable gas of the type commonly used in ovens, such as natural gas or more likely propane, which is commonly used in trailers. She smelled the gas, ran out of the trailer, was dragged back in by defendant and still smelled gas. This shows that it was not a mere whiff of gas, but a substantial amount; indeed, the fact she could smell the gas despite the ventilation shows there must have been a substantial amount.
Although the victim testified the gas did not ignite when defendant tried to light it, she also testified some windows were open. The jury could rationally infer that all defendant had to do was close the windows to decrease the ventilation and thereby increase the concentration of gas in the trailer. The jury could also rationally conclude that filling a trailer with oven gas and lighting it would cause injury. Therefore, defendant had the "present ability" to inflict injury. The ventilation of the trailer, which fortuitously protected the victim, was functionally equivalent to a pane of bulletproof glass that protects a shooting victim; it was an "`external circumstance[] [that] doom[ed the] attack to failure." (Chance, supra, 44 Cal.4th at p. 1174.)
Substantial evidence supports the verdict on count Three, assault by means likely to produce great bodily injury.
II. Conviction for an Included Offense
Defendant contends he should not have been convicted of both misdemeanor assault (count One) and felony assault by means likely to cause great bodily injury (count Three).
Convictions included within greater convictions cannot stand (People v. Pearson (1986) 42 Cal.3d 351, 355), but that principle does not apply here. Count One charged felony assault based on defendants act of placing a plastic bag over the victims head, and the jury convicted defendant of the included charge of simple assault. Count Three charged felony assault and the prosecutor elected defendants act of attempting to ignite the oven gas. Thus, the counts were not based on the same acts and count One is not included within count Three.
We reject defendants view that the jurys verdict of misdemeanor—rather than felony—assault in count One has any relevance. The fact the jury may have shown lenity (or, as the trial court said, "gave him a gift") does not change our mode of review. Acquittals or convictions on lesser charges do not affect other counts. (Pen. Code, § 954; see People v. Johnson (2006) 142 Cal.App.4th 776, 788; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657.) Therefore, we reject defendants claim that "any application of force used to support the simple assault conviction in count [One] is part of the factual basis of the felony assault conviction in count [Three]."
III. Substantial Evidence of Criminal Threats
Defendant contends no substantial evidence supports his conviction on count Four, criminal threats (which were designated "terrorist" threats in the verdicts).
We reject this claim.
First, defendant explicitly links this claim to his claim that no substantial evidence supports count Three: "Appellant contends he may not properly be convicted of making a criminal threat if the conviction for assault by means likely to produce great bodily injury is upheld." This claim is based on the incorrect premise that if a threat was part of the proof of the felony assault, it could not also be used to support the threat count. The threat to blow up the trailer was not an element of the felony assault count, and in any event defendant made many threats to kill the victim that night, not only the one about blowing up the trailer.
Second, defendant claims "he did not make a threat when he said he was going to kill [the victim], but instead made a statement of fact which supported the assault conviction but did not support the criminal-threat conviction." We disagree with this view. Defendant made a series of credible threats which fell within the definition provided by section 422:
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant `willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat `with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat—which may be `made verbally, in writing, or by means of an electronic communication device—was `on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened `to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear was `reasonabl[e] under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
The evidence shows defendant repeatedly threatened to kill the victim, when he put the bag over her head, when he threatened to light the oven gas, when he held a knife to her throat, when he put a noose around her neck and when he covered her head with duct tape. Based on the circumstances, including the victims injuries, the jury could infer that he intended her to believe him, that his threats were immediate and unconditional, and that the victims fear was reasonable. We reject the claim that there is no substantial evidence to support the threat charge under section 422.
IV. Unanimity Instruction
Defendant contends the trial court should have instructed the jury that it had to decide unanimously on the act or acts supporting count Four, "terrorist" threats. We disagree, because defendants series of threats was part of a continuous course of conduct and there was no reasonable basis for the jury to distinguish among the various threats defendant made.
"Where the jury receives evidence of more than one factual basis for a conviction, the prosecution must select one act to prove the offense, or the court must instruct the jury that it must unanimously agree on one particular act as the offense. [Citations.] A unanimity instruction is not required if the evidence shows one criminal act or multiple acts in a continuous course of conduct." ( People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 ( Jantz ).)
"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." (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
In this case the People proved defendant made a continuous series of threats throughout the victims ordeal; "they were similar and relatively contemporaneous in time, and the parties did not make any significant distinction between them." (Jantz, supra, 137 Cal.App.4th at p. 1293.) There was no reasonable possibility some jurors would believe one discrete threat and others would believe another threat. The defense was that no threats had been made and the verdicts show that the jury rejected this version of the evidence.
Defendant relies on People v. Melhado (1998) 60 Cal.App.4th 1529 (Melhado). Melhado had trouble paying his car repair bill and became angry at the victim, the repair shop owner. On the morning he learned that his car had been put into storage, he told the victim he would "`blow you away" and would get a grenade (the "9 a.m. event"). Melhado left the shop and the victim called the police. After the police left, Melhado returned, showed a grenade, and repeated his threats, frightening the victim and some employees (the "11 a.m. event"). After Melhado left, the police came again and left again. Still later that day, Melhado came to the shop again, and he was arrested (the "4 p.m. event"). (Id. at pp. 1532-1534.)
The prosecutor in Melhado advised the court that he was basing liability for terrorist threats on the "11 a.m. event," and only mentioned the other events to show the seriousness of Melhados threat and the reasonableness of the fear it induced. However, the jury was never told of this election. (Melhado, supra, 60 Cal.App.4th at pp. 1535-1536.) After concluding the "9 a.m. event" was sufficient to establish liability, the court held without significant analysis that "we cannot say that, beyond a reasonable doubt, each of 12 jurors agreed unanimously" on the same event. (Id. at p. 1539.)
Melhado, supra, 60 Cal.App.4th 1529 is factually unlike this case. Melhado uttered threats at the repair shop, left, and returned a couple of hours later and uttered further threats. Thus, there were two distinct episodes of threats. Here, in contrast, the victim was held in the trailer for hours while the defendant continuously threatened to kill her, while placing a plastic bag over her head, threatening to light oven gas, placing a knife to her throat, placing a noose over her neck and covering her head with duct tape. Thus, assuming the Melhado decision is correct on its facts, it has no application to these facts.
V. Sentencing Claims
Defendant contends that the sentences for simple assault (count One) and criminal threats (count Four) should have been stayed under section 654. Defendant also contends that, under Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the jury should have determined whether section 654 applied. We reject these claims.
A. Section 654, Simpliciter
Section 654, subdivision (a) provides in part:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
The California Supreme Court has held:
"Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19; see People v. Latimer (1993) 5 Cal.4th 1203, 1216.)
The trial court designated count Three, felony assault, as the base term, and imposed the midterm of three years therefor. For count One, misdemeanor assault, the trial court imposed a 180-day jail sentence, reducing defendants custody credits by that amount. For purposes of this appeal we accept defendants view that this made the sentence "consecutive." For count Four, criminal threats, the trial court imposed a one-third midterm consecutive sentence of eight months. For count Five, attempted false imprisonment, the trial court imposed and stayed a midterm one-year sentence.
Defendant contends both counts One and Four should have been stayed because they "were committed during a course of conduct indivisible in time" from the felony assault in count Three. We disagree. What matters for section 654 purposes is the intent and objective of the actor, not the temporal relationship between crimes, although closeness in time may inform as to the actors intent and objective.
Throughout the event, defendant threatened to kill the victim (count Four). He also took discrete steps to harm her, such as by trying to suffocate her (count One) and trying to blow her up (count Three). The fact he threatened to kill her and also took steps which, but for happenstance, might have killed her, does not mean all of his actions had one and only one objective.
People v. Harrison (1989) 48 Cal.3d 321, held that each sexual act may be separately punishable, even if the defendant may be said to have the common objective of sexual gratification as to all counts. (Id. at pp. 335-338.) That holding has been extended by other cases to acts of nonsexual violence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1257; People v. Surdi (1995) 35 Cal.App.4th 685, 688-690; People v. Trotter (1992) 7 Cal.App.4th 363, 366-368.) We follow those cases.
B. Section 654, Cunningham
The gist of Cunningham is as follows:
"Californias determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated `upper term sentence. . . . The question presented is whether the DSL, by placing sentence-elevating factfinding within the judges province, violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does." (Cunningham, supra, 549 U.S. at p. 274 .)
The California Supreme Court has held that the decision to impose consecutive sentences under section 669 does not violate Cunningham:
"The determination whether two or more sentences should be served [consecutively] is a `sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not `implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense." ( People v. Black (2007) 41 Cal.4th 799, 823.)
While the decision to run a sentence consecutively is distinct from a section 654 decision, the reasoning of Black regarding section 669 precludes a different result as to section 654: A section 654 finding does not increase the maximum statutory penalty for the particular crimes. (See People v. Retanan (2007) 154 Cal.App.4th 1219, 1229-1230; People v. Cleveland (2001) 87 Cal.App.4th 263, 270-271.) Further, In People v. Black (2005) 35 Cal.4th 1238, 1263-1264 (Black I), the California Supreme Court concluded that a section 654 decision did not require a jury trial. Although other portions of Black I were undermined by Cunningham, this portion was not addressed by the United States Supreme Court. We must follow existing California Supreme Court precedent. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, Acting P. J.
DAVIS, J.