Opinion
F072152
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP LEE WAGNER et al., Defendants and Appellants.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Phillip Lee Wagner. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant Rachel Ann Patch. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. BF159385A & BF159385C)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant Phillip Lee Wagner. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant Rachel Ann Patch. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellants Phillip Lee Wagner (Phillip) and Rachel Ann Patch (Patch), siblings, were convicted of several crimes arising from an altercation with employees of a store. Their brother, Jerry Wagner (Jerry), who is not a party to this appeal, was also involved. Phillip and Patch appeal, claiming (1) they were improperly convicted of both assault with a deadly weapon and assault by means of force likely to produce great bodily injury arising from the same acts, (2) there is insufficient evidence to support their assault convictions, and (3) instructional error.
Because Phillip and Jerry share the same last name, we will refer to them by their first names. No disrespect is intended.
We agree Phillip and Patch were improperly convicted of both assault with a deadly weapon and assault by means of force likely to produce great bodily injury arising from the same acts. We reject their remaining contentions.
STATEMENT OF THE CASE
Phillip was convicted following a jury trial of two violations of robbery (Pen. Code, § 212.5, subd. (c); counts 1 & 5); two violations of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 & 6); two violations of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 4 & 7); and one violation of battery causing serious bodily injury (§ 243, subd. (d); count 3). In the same trial, Patch was convicted of two violations of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2 & 6); and two violations of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 4 & 7). She was acquitted of two counts of robbery (§ 212.5, subd. (c); counts 1 & 5) and one count of battery causing serious bodily injury (§ 243, subd. (d); count 3). Phillip was sentenced to six years in prison. The court suspended imposition of sentence for Patch and placed her on probation for three years, upon various terms and conditions. Appellants filed timely notices of appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE FACTS
Alex De La Cruz, an employee of the store, observed Phillip and Jerry walking around the store, eventually heading toward the front door. De La Cruz observed that Phillip looked dissatisfied and may have had stolen items in his jacket. Having been trained to approach dissatisfied customers (even if they are suspected of stealing), De La Cruz moved toward Phillip and Jerry and yelled "Hi" to them. De La Cruz also called for his manager, Joel Sotelo. When De La Cruz was within a foot of Phillip, Phillip "charge[d]" toward De La Cruz, and De La Cruz grabbed Phillip and pushed him toward the door.
Sotelo ran toward Phillip and De La Cruz and tried to break them apart. Jerry followed behind and punched Sotelo in the back of the head. De La Cruz observed Jerry about to strike Sotelo again, so he pushed Jerry out the front door, with Sotelo and Phillip following behind. Once outside, Phillip "attack[ed]" De La Cruz again, and various items from the store fell out of Phillip's jacket. The two began wrestling on the ground.
Sotelo tried to back Jerry away from the store and threatened to hurt him if he came near him. Jerry eventually ran to a car in the parking lot where Patch was in the driver's seat. Sotelo again tried to pull De La Cruz and Phillip apart, who were by a planter near the front of the store.
Jerry obtained an approximately 36-inch long "two-by-four" board with a shaved handle from the car. Jerry approached the altercation between Sotelo, Phillip, and De La Cruz and swung the board at Sotelo. Sotelo tried to move out of the way, but the board grazed his left shoulder. Sotelo continued to try to get De La Cruz off Phillip, and Jerry swung again. Sotelo ran around the planter in order to get away from Jerry, and Jerry chased after Sotelo with the board.
During the altercation, Patch had pulled the car right next to the altercation by the planter. She got out of the vehicle, yelled for Jerry to hit Sotelo, and kicked Sotelo in the buttocks while he was running away from Jerry. After kicking Sotelo, Patch ran back to her car and stood in the driver's side doorway with the door wide open. Jerry swung the board at Sotelo, and Sotelo ran back to the front of the store.
Jerry took his attention off Sotelo and turned toward De La Cruz, who was laying on his side with Phillip on top of him holding him down on the ground. Phillip yelled, "Hit him now," and Jerry hit De La Cruz four times with the board, breaking De La Cruz's arm. Phillip immediately let De La Cruz go, and Jerry dropped the board and ran to the car. Sotelo ran toward Jerry to try to get him away from De La Cruz after the first hit, but Jerry kept hitting. Sotelo dragged De La Cruz away from the planter to the front door of the store.
Phillip acquired the board, and, according to Sotelo, "charg[ed]" and swung the board "wildly" at Sotelo and De La Cruz. Phillip also aggressively yelled at them that he wanted his things, and he threatened to kill them if they came near him. Phillip retrieved items from the ground in front of the entrance of the store. He was about 25 to 30 feet away from Sotelo and De La Cruz, though both witnesses testified they felt Phillip was coming closer. Patch yelled to Phillip to get in the car and that the police were being called. Phillip got in the vehicle, and Patch drove both her brothers out of the parking lot.
DISCUSSION
I. Sufficiency of the Evidence
Phillip argues the evidence is insufficient to support his assault convictions against Sotelo, and Patch argues the evidence is insufficient to support her assault convictions against De La Cruz.
A. Standard of Review
In determining the sufficiency of the evidence, we ask whether, on the entire record, a rational trier of fact could find appellants guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) The appellate court must "view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.) Reversal for insufficient evidence is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Analysis
1. Sufficient Evidence Supports Phillip's Conviction for Assault with a Deadly Weapon Against Sotelo
To establish the crimes of assault with a deadly weapon and assault with force likely to produce great bodily injury, the People must prove, among other elements, that the defendant had a "present ability, to commit a violent injury on the person of another." (Pen. Code, § 240, emphasis added.) Phillip claims this element was not supported by sufficient evidence because he was 30 feet away at the time he was swinging the board at Sotelo and De La Cruz, and therefore had no "present ability" to apply force with the weapon or inflict great bodily injury.
The "present ability" "element is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.]" (People v. Chance (2008) 44 Cal.4th 1164, 1168 (Chance).) In Chance, the California Supreme Court explored the concept of "present ability." In Chance, the defendant, who was being chased by a police officer, hid behind a trailer and aimed a loaded firearm at a location where he expected the officer to appear. However, unknown to the defendant, the officer took evasive action and approached the trailer from the opposite side, thereby coming up behind the defendant and forcing him to drop his weapon before he had an opportunity to aim it at the officer. (Id. at pp. 1168-1169.) The defendant was convicted of assault. The defendant argued he did not have the "present ability" to inflict injury because he would have had to "turn, point his gun at the officer, and chamber a round before he could shoot." (Id. at p. 1171.) The court affirmed the conviction, noting that though the "present ability" element requires the ability to strike "immediately," "'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Id. at p. 1168, fn. omitted.)
Phillip argues Chance is inapposite because the ability to inflict injury with a loaded firearm from 30 feet away is obvious but swinging a three-foot-long board from 30 feet away is not. We disagree. Chance explains that "when a defendant equips and positions himself to carry out a battery, he has the 'present ability' required ... if he is capable of inflicting injury on the given occasion, even if some steps remain to be taken, and even if the victim or the surrounding circumstances thwart the infliction of injury." (Chance, supra, 44 Cal.4th at p. 1172.)
The court in People v. Nguyen (2017) 12 Cal.App.5th 44 applied the holding in Chance to an assault involving a knife. There, the defendant pointed an approximately 12- to 15-inch long knife toward the victims while taking a step toward them, from approximately 10 to 15 feet away. (Id. at pp. 46-47.) The defendant argued he could not be convicted of assault because he did not have the "present ability" to inflict an injury from 10 to 15 feet away. (Id. at p. 48.) The court, relying on Chance held that a reasonable jury could have found the defendant had the "present ability" to inflict an injury because under the facts, he caused a threat of present injury even though the defendant was "steps away" from applying force. (Nguyen, at p. 49.)
The court rejected the defendant's argument that the case was distinguishable from Chance because his weapon was a knife, not a firearm. The court noted that although Chance involved a firearm, the court "cited with approval cases discussing other weapons, such as swords and hatchets." (People v. Nguyen, supra, 12 Cal.App.5th at p. 49.)
One such case was People v. Yslas (1865) 27 Cal. 630 (Yslas). In Yslas, the court affirmed an assault conviction where the defendant threatened to kill the victim, seized a hatchet, raised it in a threatening manner, and approached within seven or eight feet of the victim. (Id. at p. 631.) The defendant did not close the distance between himself and the victim because the victim fled through the door into an adjoining room, locking the door after her. (Ibid.) The court explained: "It is not indispensable to the commission of an assault that the assailant should be at any time within striking distance. If he is advancing with intent to strike his adversary and come sufficiently near to induce a man of ordinary firmness to believe, in view of all the circumstances, that he will instantly receive a blow unless he strike in self-defense or retreat, the assault is complete." (Id. at p. 634.)
People v. Nguyen declined to distinguish, as a matter of law, the distance of seven to eight feet in Yslas from a distance of 10 to 15 feet, holding whether the distance was sufficient was a factual determination for the jury. (People v. Nguyen, supra, 12 Cal.App.5th at p. 49; see People v. Williams (2001) 26 Cal.4th 779, 790 [trier of fact in assault case is charged with determining whether defendant's "act by its nature will probably and directly result in the application of physical force against another"].)
Sotelo testified that Phillip was 25 to 30 feet away, and De La Cruz testified that Phillip was 30 feet away. While the distance here is longer than that found to be sufficient in cases not involving firearms, the totality of the evidence supports the jury's finding that Phillip had the present ability to commit an injury. There is no evidence of any physical barrier impeding Phillip from closing the distance between himself and De La Cruz and Sotelo or throwing the board at them from his position. Sotelo testified Phillip swung the board "wildly" and "charg[ed]" at them and threatened to kill them if they came near him. Both witnesses felt he was advancing toward them before he ran to the car, and Sotelo testified he and De La Cruz were "backing up from [Phillip] while [he was] swinging." The jury could have reasonably inferred from these facts he was advancing with intent to strike and that the victims reasonably believed he would. De La Cruz testified that Phillip ran to the car only because Patch yelled to him that the police were being called. As Chance noted, even though surrounding circumstances may thwart injury, a jury can still find "present ability" to commit an injury based on the totality of the circumstances. (Chance, supra, 44 Cal.4th at p. 1172.) Considering the totality of the circumstances, the jury could reasonably infer that the fact Phillip needed to close the 25- to 30-foot distance in order to inflict injury constituted a mere "step" he needed to take that would not preclude a finding of "present ability" to commit injury.
A conditional threat can be punished as an assault when: the condition imposed must be performed immediately, the defendant has no right to impose the condition, the intent is to immediately enforce performance by violence, and defendant places himself in a position to do so and proceeds as far as is then necessary. (People v. McCoy (1944) 25 Cal.2d 177, 182, 193 [assault with a deadly weapon accomplished by defendant's demand, with knife held over victim, that victim not make any noise or the knife will be used].)
Phillip's convictions for assault with a deadly weapon and assault with force likely to produce great bodily injury against Sotelo are supported by sufficient evidence.
2. Sufficient Evidence Supports Patch's Conviction for Assault with a Deadly Weapon Against De La Cruz
Patch argues her convictions for assault with a deadly weapon and assault with force likely to produce great bodily injury against De La Cruz are not supported by sufficient evidence. Respondent concedes. We reject respondent's concession and find the evidence is sufficient to support her convictions.
The parties agree there is no evidence on the record Patch was the direct perpetrator of an assault against De La Cruz. In addition, the parties correctly assess that because the trial court did not instruct the jury on the natural and probable consequences doctrine, her convictions cannot be based on that theory. Because there is no evidence Patch assaulted De La Cruz directly, and we cannot consider the natural and probable consequences doctrine, our review is limited to whether the evidence establishes that Patch aided and abetted the intended crimes of assault with a deadly weapon and assault with force likely to produce great bodily injury against De La Cruz.
The instruction for natural and probable consequences was withdrawn by the People.
Patch argues she cannot be liable for assault against De La Cruz under an aiding and abetting theory because she did not know her brothers were going to assault De La Cruz and because she did not do anything to aid or encourage them in the commission of an assault against De La Cruz. She argues her intent to aid and abet in the assault of Sotelo was unfairly transferred to De La Cruz.
Patch limits her argument to acts committed by Jerry, but as there is sufficient evidence to support Phillip's direct assault of swinging the board before fleeing, we will consider his acts as well.
To prove aider and abettor liability, the People must prove: (1) the defendant had knowledge of the unlawful purpose of the perpetrator; (2) before or during the commission of the offense, he or she intended to commit, encourage, or facilitate the offense; and (3) by act or advice aided, promoted, encouraged or instigated the commission of the offense. (People v. Beeman (1984) 35 Cal.3d 547, 561.)
Patch's main argument is that she did not have knowledge of the assaults against De La Cruz. In support, she contends her case is similar to People v. Butts (1965) 236 Cal.App.2d 817 (Butts). There, Butts and his codefendant Otwell followed victims Barnard and Abreu to a lot behind a café. (Id. at p. 824.) Two separate skirmishes developed 45 to 100 feet away from one another: Butts with Abreu and Otwell with Barnard. (Ibid.) At some point during the skirmish, Otwell used a knife to stab Barnard. Barnard later died from his injuries. (Id. at p. 825.) Butts was convicted of involuntary manslaughter, and on appeal the appellate court held the evidence could not support the conviction under an aiding and abetting theory because Butts was "absorbed" in his own altercation and could have had no awareness of Otwell's use of a knife. (Butts, supra, 236 Cal.App.2d at pp. 836-837.)
Patch argues that she, like Butts, was not aware of the assault against De La Cruz because she was running to her car at the time Jerry assaulted De La Cruz with the board. Butts is distinguishable because Patch was not "absorbed" in anything that would preclude her from knowing that Jerry struck De La Cruz with the board or that Phillip swung the board toward De La Cruz. Though she ran to the car, the evidence indicates it was right next to where Jerry and Phillip's assaults against De La Cruz took place, not 45 to 100 feet away like in Butts. When she got there, she stood in the doorway, with the door wide open. A jury could reasonably infer she witnessed Jerry striking De La Cruz with the board. The jury could also infer she witnessed Phillip swinging the board at De La Cruz and Sotelo because she told him the police were being called from the doorway of her car while he was doing it. Thus, sufficient evidence supports that Patch had knowledge of the assaults against De La Cruz.
In addition to arguing that she did not know about the assaults against De La Cruz, Patch argues there is no evidence she did anything before or during the commission of the assaults against De La Cruz that would constitute intent to assist or actual assistance.
An aider and abettor's intent may be formed either before or during the commission of the crime. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) The jury may infer the defendant's intent from circumstantial evidence. (People v. Beeman, supra, 35 Cal.3d at pp. 558-559.)
"[T]he accused must have instigated or advised the commission of the crime or been present for the purpose of assisting in its commission." (People v. Villa (1957) 156 Cal.App.2d 128, 133-134.) The test of whether a defendant aided or abetted in the commission of an offense is "whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures." (Id. at p. 134.) It is not necessary that the perpetrator expressly communicate his criminal purpose to the defendant, as that purpose may be apparent from the circumstances. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) In fact, aiding and abetting can be committed "'on the spur of the moment,' that is, as instantaneously as the criminal act itself." (Id. at p. 532.)
Mere presence at the scene of the crime and failure to take steps to prevent it do not establish one as an aider and abettor. (People v. Luna (1956) 140 Cal.App.2d 662, 664 (Luna).) It is merely one circumstance to be considered along with the accused's companionship and conduct before and after the offense. (People v. Laster (1971) 18 Cal.App.3d 381, 388; see also In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Whether a person is a mere bystander or a participant is a factual determination for the jury to make. (Luna, supra, 140 Cal.App.2d at p. 664.)
This case is analogous to Luna, supra, 140 Cal.App.2d 662. In Luna, appellant Lopez, along with his codefendant Luna, approached a vehicle occupied by two females and three males. Luna held the passenger door with his shoulder keeping one of the females in the vehicle from closing it. Luna then went to the opposite door where victim Barajas was, and Lopez went with him. Luna engaged in a physical fight with Barajas. When the other males started to exit the vehicle, Lopez punched one of them, Vigil. Lopez testified he punched Vigil to keep him from joining the fight Luna was engaged in. Lopez did not strike or attempt to strike Barajas and remained silent while Luna and Barajas fought. (Id. at pp. 663-664.) Lopez was convicted of assault against Barajas and appealed, arguing the evidence was insufficient to prove he either assaulted Barajas or aided and abetted Luna in assaulting him. (Id. at p. 663.)
The Luna court held the evidence was sufficient to support a conviction based on an aiding and abetting theory. The court concluded it was reasonable to infer from the facts that when Luna and Lopez approached the vehicle they "expected trouble and were prepared for it"; Lopez stood by Luna to protect him from the other males; and when the opportunity arose for him to join in, he did so by attacking Vigil. The court noted: "There was concert of action and purpose which clearly proved Lopez to have been a participant in the entire fight and not a mere inactive and disinterested spectator. It is idle to argue he was a mere innocent bystander." (Luna, supra, 140 Cal.App.2d at p. 665.)
Here, the evidence established Jerry obtained the weapon from Patch's car. Once Jerry obtained the board, Patch did not stay parked in a stall in the parking lot; she positioned herself right next to the altercation. When Sotelo was running away from Jerry, she exited the vehicle to strike Sotelo and verbally encouraged Jerry to hit him. Sotelo had been actively trying to help De La Cruz. By assisting Jerry in his assault against Sotelo, she caused Sotelo to temporarily flee, providing Jerry the opportunity to subsequently assault De La Cruz. When Jerry began striking De La Cruz with the board, she did not leave the area, but rather remained in the immediate vicinity, standing in the doorway of the vehicle. When Phillip was swinging the board aggressively at De La Cruz and Sotelo, threatening to kill them, she remained where she was. When she determined the police were being called, she alerted Phillip so he could leave the scene without contacting law enforcement. Then she drove her brothers away from the scene.
That a defendant does not strike or attempt to strike the victim and remains silent while the victim is struck by a codefendant is not dispositive of the issue of whether he aided and abetted the victim's assault. (See Luna, supra, 140 Cal.App.2d 662.) Rather, the court considers the totality of his or her behavior. Although Patch never struck De La Cruz or verbally told her brothers to strike him, the jury could have reasonably inferred from her conduct she was, like Lopez, "standing by" to assist in De La Cruz's assault and was not a "mere inactive and disinterested spectator" or "mere bystander." (Id. at pp. 663-665.) The jury could have rejected the interpretation proffered by Patch and respondent that her conduct was intended to and did only assist in the assault of one of the victims. Sufficient evidence supports that Patch intended to assist in the assaults against De La Cruz and that she in fact assisted.
Both Patch and respondent contend Patch's telling Phillip the police were being called stopped his commission of the crime, rather than aided and abetted it, and therefore cannot be considered as a basis for aiding and abetting. We disagree; this behavior is akin to acting as a "lookout," which has been held to be sufficient to uphold an aiding and abetting conviction. (People v. Silva (1956) 143 Cal.App.2d 162, 169; People v. Moore (1953) 120 Cal.App.2d 303, 306.) By calling Phillip to the car when she determined the police had been called, and not before, prolonged the commission of the crime, thereby assisting in its commission.
Respondent contends helping a perpetrator escape after the commission of a crime gives rise to liability as an accessory rather than as an aider and abettor. This is true when the crime has already been completed, and aiding in escape is the only act of assistance by the defendant. However, the jury could find Patch did not merely aid in escape. The jury was instructed they could properly consider a person's companionship and conduct after the completion of an offense when determining whether she or he aided and abetted it. Thus, it was proper for the jury to consider the fact that Patch drove her brothers from the scene, along with her other behavior, as a factor in the determination of her guilt.
To the extent Patch argues the jury's verdict on the assault of De La Cruz is inconsistent with her acquittal on the robbery and battery against him, inconsistent verdicts do not require reversal if the convictions are supported by substantial evidence. (People v. Miranda (2011) 192 Cal.App.4th 398, 405-406.) In part, section 954 provides: "[a]n acquittal of one or more counts shall not be deemed an acquittal of any other count." It is well established that, under section 954, inconsistent verdicts are allowed to stand if the verdicts are otherwise supported by substantial evidence. (People v. Lewis (2001) 25 Cal.4th 610, 656.) "[A]ny verdict of guilty that is sufficiently certain is a valid verdict even though the jury's action in returning it was, in a legal sense, inconsistent with its action in returning another verdict of acquittal or guilt of a different offense." (6 Witkin, Cal. Criminal Law (4th ed. 2012) Criminal Judgment, § 85, p. 128.)
Patch also ignores the fact that the jury could have found her guilty of aiding and abetting an assault based on Phillip's swinging the two-by-four before leaving the area, and not Jerry's swinging the two-by-four that resulted in a battery. In the case of that finding, the convictions are not inconsistent.
Patch's convictions for assault with a deadly weapon and assault with force likely to produce great bodily injury against De La Cruz are supported by sufficient evidence.
II. The Same Act or Course of Conduct Cannot Support Convictions for Both Assault with a Deadly Weapon and Assault with Force Likely to Cause Great Bodily Injury
Appellants were each convicted of a violation of section 245, subdivision (a)(1), assault with a deadly weapon against each victim and a violation of section 245, subdivision (a)(4), assault with force likely to produce great bodily injury against each victim. They argue it was improper for them to have been convicted of both assault with a deadly weapon and assault with force likely to produce great bodily injury arising from the same acts.
Respondent concedes, citing the Division One of the Court of Appeal, First Appellate District case, In re Jonathan (2016) 3 Cal.App.5th 963, wherein the court held that section 245, subdivision (a)(1) and section 245, subdivision (a)(4) are separate offenses, but that section 245, subdivision (a)(4) is a necessarily included offense of section 245, subdivision (a)(1). We note that after briefing was completed in this case, the Court of Appeal, Fourth Appellate District, Division One declined to follow In re Jonathan in its decision in People v. Brunton (2018) 23 Cal.App.5th 1097. In People v. Brunton, the court held that section 245, subdivision (a)(1) and section 245, subdivision (a)(4) are different statements of the same offense. (People v. Brunton, supra, at pp. 1106-1107.)
Although each case employs a different analysis, both conclude that a single act or course of conduct cannot sustain convictions for both section 245, subdivision (a)(1) and section 245, subdivision (a)(4). In light of respondent's concession on the matter, we decline to weigh in on the discussion of this issue because it does not affect our holding in the present case. Under either analysis, we reverse both appellants' convictions of assault with force likely to cause great bodily injury in counts 4 and 7.
III. Alleged Instructional Errors
Patch, joined by Phillip, argues the court improperly instructed on assault and self-defense/defense of another.
All parties acknowledge trial counsel did not object to either challenged instruction. Respondent argues the issue is therefore forfeited. Patch contends this court should consider the issue because the alleged errors affected her substantial rights. In the alternative, she argues the failure to object constitutes ineffective assistance of counsel. We need not address respondent's claim of alleged forfeiture because when we assume no forfeiture occurred, Patch's position loses on the merits. As a result, we need not address Patch's ineffective assistance of counsel claim.
A. The Court's Aggravated Assault Instruction Was Proper
CALCRIM No. 875, as instructed in this case, provided in pertinent part:
"The defendants are charged in Counts 4 and 7 with assault with force likely to produce great bodily injury and in Counts 2 and 6 with assault with a deadly weapon other than a firearm, in violation of Penal Code Section 245.
"Now, to prove that the defendants are guilty of this crime, the People must prove, as to Counts 2 and 6, that:
"One, the defendants did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person.
"And as to Counts 4 and 7, that:
"One, the defendant did an act that by its nature would directly and probably result in the application of force to a person and the force was likely to produce great bodily injury.
"And as to all of those counts:
"Two, the defendants did that act willfully;
"Third, when the defendants acted, they were aware of facts that would lead a reasonable person to realize that their acts by their nature would directly and probably result in the application of force to someone;
"And, fourth, when the defendants acted, they had the present ability to apply force likely to produce great bodily injury and with a deadly weapon other than a firearm to a person;
"And, fifth, the defendants did not act in self-defense or in defense of someone else." (Emphasis added.)
Patch argues from these instructions, it was not clear that the jury was required to find each individual victim must have been subject to the application of force. Patch argues that because the instruction requires the jury to find the elements as to "a person," "by following the letter of the instruction, the jury may have convicted [Patch] of assault on Mr. De La Cruz because she aided Jerry in his assault of 'a person' (Mr. Sotelo)." She relies on this court's decision in People v. Velasquez (2012) 211 Cal.App.4th 1170 (Velasquez) where we explain that in some instances it is necessary to modify CALCRIM No. 875, to avoid juror confusion.
In Velasquez, we found CALCRIM No. 875 was a correct statement of the law, but under the circumstances of that case it improperly reduced the prosecution's burden of proof. (Velasquez, supra, 211 Cal.App.4th at p. 1177.) In Velasquez, the defendant drove by a residence and shot a firearm several times into the garage. One person was in the garage at the time, and four other people were in the residence. Velasquez was convicted of five counts of assault, one for each person in the residence and one for the person in the garage. (Id. at pp. 1171-1172, 174.)
We reversed the conviction on the four counts related to the four people who were in the residence because "by following the letter of the instruction, the jury may have found Velasquez guilty of assaulting the other four individuals because firing the shots resulted in a direct and probable application of force to" the victim who was in the garage at the time the shots were fired. (Velasquez, supra, 211 Cal.App.4th at p. 1177.)
We illustrated the concept that the victim of an assault must be subject to the application of force with a hypothetical:
"One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant's aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and
probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that 'by its nature would directly and probably result in application of force' to John Doe." (Velasquez, supra, 211 Cal.App.4th at pp. 1176-1177.)
Velasquez is clearly distinguishable. In Velasquez, the verdicts for assaults against all five victims were based on a single act of shooting into the garage. Thus, in that particular case, it may not have been clear that the jury needed to apply that single act separately to each of the people in the residence when the facts clearly showed the person in the garage was subject to the force of that single act. Here, the jury was not charged with determining whether a single act constituted an assault on multiple victims. It was charged in part with determining whether acts directed specifically toward each victim constituted assault. For example, one of the acts was Jerry swinging the board at Sotelo while De La Cruz was fighting with Phillip. It would be unreasonable for the jury to apply that act against De La Cruz. Significantly, and unlike Velasquez, the jury was not required to do so in order to find an assault against De La Cruz because it was also presented with evidence that Jerry also swung the board at De La Cruz, after Sotelo had run away. As the jury in Velasquez was presented with multiple acts directed at multiple victims, it is not reasonably likely the jury would understand the instruction as allowing them to apply an assault against one victim to another. In the case of Phillip's single act of swinging the board at both De La Cruz and Sotelo, Velasquez does not apply, as the evidence shows both victims were clearly in an equal position of having force applied to them and Phillip was yelling and swinging directly at both. There is no reasonable probability the jury did not understand the concept that each victim had to be subject to the application of force.
Essentially, in Velasquez, it was not clear whether all the alleged victims had been assaulted. Here, both victims were clearly assaulted. As to Patch, the question is whether she aided and abetted in an assault against De La Cruz, not that one took place. To the extent she argues the jury was permitted to find that when she encouraged an assault against one victim, she aided an assault against the other victim, under these facts, this is a permissible inference to support aiding and abetting liability, and it simply does not implicate Velasquez. (See Luna, supra, 140 Cal.App.2d 662.)
Patch argues a portion of the aiding and abetting instructions exacerbated the alleged confusion created by the assault instruction, but we are not convinced. When the court gave its general aiding and abetting instruction, the court instructed that "[u]nder some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occur during the commission of the first crime." Patch argues that based on this instruction, the jury could believe that if it found Patch aided and abetted Jerry's assault against Sotelo, it could also find that she is liable for Jerry's later assault on De La Cruz without finding she aided and abetted the assault against De La Cruz. Patch contends the court was alluding to the natural and probable consequences doctrine. Because the court did not read the full instructions on the natural and probable consequences doctrine, which would have defined the "specific circumstances" referred to by the given instruction, Patch argues this instruction was improper.
First, we note the jury was instructed that a person could be liable for additional crimes only under "specific circumstances." "It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." (People v. Gonzales (2011) 51 Cal.4th 894, 940.) The jurors were not given any "specific circumstances" to apply. Thus, the instruction was simply extraneous and could not lead to confusion. In addition, the jury was properly instructed that the aider and abettor must have specific intent to assist the perpetrator in committing the crime. Furthermore, no reference was made during closing argument to the natural and probable consequences doctrine, and we have held Patch's assault against De La Cruz is supported by sufficient evidence based on a straight aiding and abetting theory.
Patch also contends that the prosecutor's argument contributed to the alleged confusion because the prosecutor argued the assaults were a collective act. We do not find the prosecutor's argument so misleading as to affect our above analysis.
Patch argues that the prosecutor stated that "the jurors could convict [Patch] of assault on Mr. [De La] Cruz because she aided (by kicking Mr. Sotelo, yelling 'get him' and driving away), and Jerry hit Mr. [De La] Cruz with the board."
This is a mischaracterization of the prosecutor's argument. In the portions of the record Patch cited, the prosecutor explained her interpretation of Patch's involvement as an aider and abettor:
"We have Ms. Patch, who never entered the store, who does kick Mr. Sotelo in the butt, but she obviously is not the one with the board at any time. [¶ ] We have Phillip Wagner, who does not give the damaging blows to Mr. De La Cruz, does hold the board at some point, but all three are acting together. [¶ ] ... [¶ ] Ms. Patch waited in her car for her brothers to take them to safety, but she didn't just wait in her car. She decided to encourage them to participate in this matter. She did so in two direct ways, ladies and gentlemen. Hit him. Hit him. Not help us, help us, or help him. Hit him. [¶ ] And then she decides to take it a step further and she goes out and she kicks Mr. Sotelo. Now, it didn't injure him, no, not like the board hitting Mr. De La Cruz, and he didn't fall over from it, but she did make physical contact and, in essence, helped her brothers out in their assault of these employees. She aided her brothers. [¶ ] ... [¶ ] She then aids in her car by getting in, the car that was containing that two-by-four, remember, and speeds away. She doesn't remain at the scene for the police to come. She speeds away."The prosecutor is clearly explaining her theory regarding Patch's intent to assist both Jerry and Phillip in their assaults on each victim and does not suggest that one assault against one victim constitutes an assault against the other. We have held the evidence the prosecutor argued was proper for the jury to consider to convict Patch of assault against De La Cruz. Further, the prosecutor refers to discrete assaults in her argument. For example, she states at one point: "Phillip Wagner decides he's going to assault Mr. De La Cruz. He pushes him, slams him into the water .... [¶ ] As that is happening Jerry Wagner decides he's going to join in, hits Mr. Sotelo on the head." By stating that Phillip "assault[ed]" De La Cruz, she is enforcing the idea that force applied against De La Cruz was an assault against De La Cruz alone, not Sotelo as well.
We find, considering the instructions and argument as a whole, the court properly instructed on assault.
Patch also briefly asserts the trial court's unanimity instruction contributed to the jury's confusion about assault as well, but she does not support her claims with authority or argument. If a particular point is not supported with legal authority/citation of authority, the reviewing court may treat it as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; see also Cal. Rules of Court, rule 8.204(a)(1)(B).)
B. Based on the Totality of the Record, the Court's Defense of Another Instruction Was Proper
Patch, joined by Phillip, argues the trial court erred when it gave the following instruction to the jury on self-defense/defense of another:
"Self-defense is a defense to Counts 2, 3, 4, 6, and 7 and the lesser-included offenses thereto.
"The defendant is not guilty of those crimes if he or she used force against the other person in lawful self-defense or defense of another.
"The defendant acted in lawful self-defense or defense of another if:
"One, the defendant reasonably believed that he or she was in imminent danger of suffering bodily injury or Jerry Wagner was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
"Two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
"And, third, the defendant used no more force than was reasonably necessary to defend against that danger.
"[¶ ] ... [¶ ]
"The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense or defense of another. If the People have not met this burden, you must find the defendant not guilty of Counts 2, 3, 4, 6, and 7 and the lesser-included offenses thereto." (Emphasis added.)
Patch contends the first element should have read: the defendant reasonably believed that he or she or each other or Jerry Wagner was in imminent danger of suffering bodily injury. She argues the jury did not understand that each defendant could be acquitted if found acting in the defense of the other. We disagree.
"When considering a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. [Citation.]" (People v. Houston (2012) 54 Cal.4th 1186, 1229.) In that context, we must then "determine whether it is reasonably likely the jurors understood the instruction[s] as appellant suggests. [Citation.] In making that determination, we must consider several factors including the language of the instruction[s] in question [citation], the record of the trial [citation], and the arguments of counsel." (People v. Nem (2003) 114 Cal.App.4th 160, 165.) We presume the jurors are "intelligent and capable of understanding and applying the court's instructions. [Citation.]" (People v. Gonzales, supra, 51 Cal.4th at p. 940.)
Based on this record, it is not reasonably likely the jury misunderstood the defense of another instruction as appellants contend. The jury was told that a defendant is not guilty of the crimes charged in counts 2, 3, 4, 6, and 7 (and the lesser-included offenses) if he or she used force against another person in lawful "defense of another." The court repeatedly instructed the jury that the prosecution had the burden to prove that each defendant "did not act in self-defense or in defense of someone else." (Emphasis added.)
During closing arguments, Patch's trial counsel urged the jury to find Patch not guilty because Patch was defending her brother, who was being "accosted" by De La Cruz. Defense counsel asked the jurors to review the facts and instructions, and "decide whether [Patch's] actions fit in defense of others. I believe they do. But that's a decision you have to make." At no point did the prosecutor claim this was a misstatement of law. To the contrary, although she contended the facts did not support this defense, the prosecutor suggested this defense applied to all codefendants. "You'll read through the jury instructions. You'll find that self-defense or defending their fellow criminal siblings did not exist ...." (Emphasis added.)
We presume the jurors were intelligent and capable of understanding and applying the court's instructions. (People v. Gonzales, supra, 51 Cal.4th at p. 940.) Although the court never expressly stated the codefendants could defend each other, the totality of the instructions made it clear they could rely on this defense in that manner. Patch's counsel emphasized that this defense potentially applied to Patch when she defended her brother. The prosecutor never stated or suggested this was a misstatement of law.
Based on the context of the entire instructions and counsel's arguments, it is not reasonably likely the jurors misunderstood the defense of another instruction as appellants contend. Accordingly, no instructional error occurred and this claim fails.
IV. Patch's Sentencing Minute Order Contains a Clerical Error
In count 2, Patch was convicted of a violation of section 245, subdivision (a)(1). There appears to be a clerical error in the minute order pertaining to Patch's sentencing. Page 1 of the minute order states: "[a]s to count 2: PC 245(A)(2)."
On its own motion, an appellate court with jurisdiction of a case may order correction of clerical orders contained in the abstract of judgment, or in this case, a copy of the clerk's minute order. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)
Accordingly, we remand to the trial court to correct the minute order to reflect that Patch was convicted in count 2 of a violation of section 245, subdivision (a)(1).
DISPOSITION
Patch's and Phillip's convictions for violations of section 245, subdivision (a)(4), assault by means of force likely to produce great bodily injury against De La Cruz in count 4 and Sotelo in count 7 are reversed.
The case is remanded for the clerk's minute order to be corrected to state Patch's conviction in count 2 as a violation of section 245, subdivision (a)(1), not (a)(2).
In all other respects, the judgment is affirmed. The trial court is directed to forward the corrected abstract of judgment and minute order to the appropriate authorities.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
FRANSON, J.