In re Alexis Z.
Filed 9/18/12 In re Alexis Z. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ALEXIS Z., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEXIS Z.,
Defendant and Appellant.
D059968
(Super. Ct.
No. J229053)
APPEAL from
a judgment of the Superior Court
of San Diego
County, Lawrence Kapiloff, Judge. (Retired Judge of the San Diego Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.
The
juvenile court declared Alexis Z. a ward (Welf. & Inst. Code, § 602) after
sustaining allegations he committed assault by means of force likely to cause
great bodily injury (Pen. Code, § 245, subd. (a)(1)),[1] assault
with a deadly weapon (§ 245, subd. (a)(1)); battery resulting in serious
bodily injury (§ 243, subd. (d)); possession of metal knuckles (§ 12020, subd.
(a)(1)) and misdemeanor battery (§ 242).[2]
The court
found the maximum period of confinement to be seven years. The court placed Alexis on probation and
committed him to the Short Term Offender Program for a period not to exceed 90
days.
Alexis
appeals, contending the true finding on the misdemeanor battery count must be
reversed because the crime is a lesser included offense of felony battery, and
the true finding of assault with force likely to cause great bodily injury
count must be reversed because it is duplicative of the true finding on the
assault with a deadly weapon count.
Alexis also contends the court violated his due process rights by questioning a
defense witness.
FACTS
Alexis and
Bryan G. attended the same high school.
After
school on May 6, 2011,
Alexis and Bryan went to the apartment complex where Alexis resides. Bryan
used the restroom by the pool, and when he came out of the restroom, Alexis
punched him in the face. Bryan
fell down and other people began to hit and kick him. Someone "whipped" Bryan
with a metal chain. The chain also was
used to punch Bryan, who did not identify the chain wielder at trial. Bryan
estimated 20 people attacked him, including Alexis and his brother. After the attack, Bryan
ran to a nearby 7-Eleven convenience store, where the clerk called 911.
Escondido
Police Officer Beverly Holtz responded to the call. She testified Bryan
was bleeding from his nose and mouth area and had welts on his forehead that
appeared to be caused by a chain. Bryan
also had chain marks on his torso, back, arms and thigh. Bryan
told Holtz that Alexis hit him with a chain.
Alexis told
Holtz he pulled a chain that connected his wallet to the belt of his pants,
wrapped the chain around his hand and punched Bryan. Alexis said he used the chain because Bryan
had pulled out a knife and swung it towards him. Four other people who were at the scene, testified
that Bryan pulled a knife on
Alexis. Bryan
denied owning a knife and testified he did not use any weapon while being
attacked. A knife was later retrieved
from the bottom of the pool.
DISCUSSION
I
Alexis
contends the true finding that he violated section 242 by committing battery
must be reversed because simple battery is a lesser included offense of battery with serious bodily injury. Alexis is correct, as the Attorney General
concedes. (People v. Ortega (1998) 19 Cal.4th 686, 692-693, disapproved on
another point in People v. Reed
(2006) 38 Cal.4th 1224, 1228-1229, 1231.)
We shall order the juvenile court to strike the true finding on the
battery count.
II
Alexis
contends the true finding on the assault with force likely to cause great
bodily injury count must be reversed because it is duplicative of the true
finding on the assault with a deadly weapon count. The contention is without merit.
Under
section 954, "[a]n accusatory pleading may charge . . . different
statements of the same offense" and "the defendant may be convicted
of any number of the offenses charged."
Alexis is
correct that section 245, subdivision (a)(1) defines only one crime. " 'The offense of assault by means
of force likely to produce great bodily injury is not an offense separate from
. . . the offense of assault with a deadly weapon.' " (People
v. Aguilar (1997) 16 Cal.4th 1023, 1036-1037, quoting In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) A person can violate section 245, subdivision
(a)(1) by committing an assault upon the person of another with a deadly weapon
other than a firearm or by means of
force likely to produce great bodily injury.
(Aguilar, at p. 1028.) "[T]he statute focuses on
alternatively, on force likely to
produce great bodily injury[;] whether the victim in fact suffers any harm is
immaterial." (Ibid.) A " 'deadly
weapon' " can be " 'any object . . . which is used in such a
manner as to be capable of producing and likely to produce, death or great
bodily injury.' " (
Alexis,
however, is mistaken in assuming he committed only one crime and the two counts
are duplicative. Alexis assaulted Bryan
with the chain twice—(1) by whipping Bryan
with the chain, and (2) by punching Bryan
with the chain wrapped around his fist.
Those were separate acts; it does not matter that they happened in the
same fight. In People v. Johnson (2007) 150 Cal.App.4th 1467, the defendant was
convicted of three counts of corporal injury on a cohabitant arising from a
single incident in which he hit a woman with whom he was living on the nose,
eyes and mouth; choked her and held her by her throat against the wall and
struck her on the neck, arm, lower back and leg; and stabbed her in the left
arm. (Id. at p. 1471.) The Court
of Appeal rejected the defendant's claim that multiple convictions were
improper under section 954 because his conduct constituted a single continuous
assault, the appellate court found "the crime described by section 273.5
is complete upon the willful and direct application of physical force upon the
victim, resulting in wound or injury. It
follows that where multiple applications of physical force result in separate
injuries, the perpetrator has completed multiple violations of section
273.5." (Id. at p. 1477.) As a
result, the appellate court concluded the evidence supported three separate
convictions for a violation of section 273.5 consisting of: one offense when defendant beat the victim;
another when he held her by the throat; and a third when he stabbed her
arm. (Ibid.) Similarly, here,
under section 954, Alexis's charge and true finding of two counts of aggravated
assault (one with a deadly weapon, and one with force likely to produce great
bodily injury) are permissible.
The tension
between section 954 and section 654, which prohibits multiple punishment for
the same act or omission, is resolved at sentencing. "In general, a person may be
arising out of the same act or course of conduct. 'In California, a single act or course of
conduct by a defendant can lead to convictions "of any number of the offenses charged." ' " (People
v. Reed, supra, 38 Cal.4th at p.
1226; see also §§ 654, 954.) Section 954
generally permits multiple convictions, although section 654 prohibits multiple
punishments for the same act or omission.
As our Supreme Court explained in People
v. Sloan (2007) 42 Cal.4th 110, 116:
" 'When section 954 permits multiple [convictions,] but
section 654 prohibits multiple punishment, the trial court must stay execution
of sentence on the convictions for which multiple punishment is
prohibited. [Citations].' "
That is
what the juvenile court did here.
Although Alexis suffered two true findings for his separate acts, he was
punished only once, as is permitted by section 654.
In the
reply brief,[3]
appellate counsel argues for the first time that if Alexis's act of whipping
Bryan with the chain and his act of punching Bryan when the chain was wrapped
around his fist were separate offenses, they were both assaults with a deadly
weapon—that is, neither was an assault with force likely to cause great bodily
injury and the true finding on that count must be reversed. Generally, a contention may not be raised for
the first time in the reply brief. (
536, fn. 30.) In any event, the
contention lacks merit.
In
1050, 1054, the appellate court held a jury was entitled to find a
three-foot-long, " 'kind of thick' " chain, which was
doubled over when swung at the victim constituted a deadly weapon. But that case is not dispositive. The record here does not contain similar
details about the chain; all that is disclosed is Alexis used the chain to
attach his wallet to his belt. It was up
to the juvenile court, sitting as trier of fact, to decide whether the chain
was used as a deadly weapon based on the nature of the chain, how it was used
and other facts relevant to the issue. (
Further, the argument in the reply brief assumes there were two acts of
aggravated assault. Since assault with a
deadly weapon and assault with intent to cause great bodily injury are not
separate crimes, but rather alternative means of violating section 245,
subdivision (a)(1), the two true findings are proper.
In a supplemental brief, appellate
counsel brings to our attention three other cases; none assists Alexis.
In
360, the defendant was convicted of two counts of forgery by signing another's
name (§ 470, subd. (a)) and two counts of forgery by making or passing a forged
check (§ 470, subd. (d)) after she signed another person's name on two checks
and then used those checks to make purchases at two different stores. (Id.
at pp. 362-364.) The Court of Appeal
held that defendant could not be convicted of two counts of forgery based on
signing her name to, and attempting to use, the same check, where both counts
were based on different subdivisions of the same statute prohibiting
forgery. (Id. at pp. 363-364, 368-369.)
After an extensive review of the legislative history of the forgery
statute (id. at pp. 364-368), the appellate
court set forth a single instrument/single forgery rule: there can be only one section 470 forgery
conviction per forged document, regardless of the number of acts committed to
accomplish the forgery. (
assault rule. During the course of the
fight Alexis committed two assaults—whipping Bryan with the chain and punching
Bryan with the chain wrapped around his fist.
In
209 (Coyle), the appellate court held
that a defendant who killed a single person could be convicted of only one
count of murder rather than multiple counts, even though the single murder
involved more than one special circumstance.
(Id. at pp. 211, 217.) The Attorney General conceded this point and
the only dispute was how to remedy the error.
(Id. at p. 217.) The Court of Appeal ruled the judgment should
be consolidated to reflect one count of murder with two special
circumstances. (Id. at p. 218.)
constituting murder, is inapposite.
Here, there were two separate acts constituting assaults.
Cal.App.2d 219, an assault case, has nothing to do with the propriety of
multiple convictions. Rather, the case
addresses the continuous conduct
exception to the election rule that applies where the evidence reveals numerous
crimes, any one of which could be the crime charged. (Id.
at pp. 220-221.)
III
Alexis
contends the juvenile court violated his right to due process by engaging in
improper advocacy when it questioned a defense witness. The contention is without merit.
The defense
witness was David M., the assistant principal of the high school, who was
called to testify about victim Bryan's character and reputation for
truthfulness and violent tendencies.
During direct examination, the assistant principal testified, among
other things, he had disciplined Bryan with a five-day suspension in connection
with this incident for engaging in a fight on the way home from school. The court interrupted the examination to
inquire if Alexis had been disciplined by the school. The assistant principal replied he intended
to discipline Alexis for the incident, but had not done so because Alexis had
not yet returned to school.
After the
prosecutor cross-examined the assistant principal, the court brought up the
school discipline issue again. The
assistant principal said he learned of the incident from talking with students
who were present at the fight and from a telephone conversation with
Bryan. At this point, the court showed
the assistant principal photographs of Bryan's injuries, which were exhibits,
and the following colloquy took place:
"THE
COURT: Looks like he was pretty well
beat up, wasn't he
"THE
WITNESS: Yes.
"THE
COURT: Did your witnesses tell you that
"THE
WITNESS: Yeah, actually they did, said
there was quite a bit of blood.
"THE
COURT: This is alleged to be and was
testified to as Bryan's leg.
"THE
WITNESS: Okay.
"THE
COURT: Do you see the marks on there
"THE
WITNESS: Yes, sir.
"THE
COURT: This is his arm.
"THE
WITNESS: Okay.
"THE
COURT: This is his side. His back.
"[¶] . . . [¶]
"THE
WITNESS: Okay.
"THE
COURT: So would you agree from these
photographs that he's pretty well beat up
"THE
WITNESS: Absolutely.
"THE
COURT: I see. Now would that indicate that -- well, let me
put that aside. You talked to him
[Bryan] about the fight
"THE
WITNESS: That's correct.
"THE
COURT: I see. And he told you his version of it
"THE
WITNESS: That's correct.
"THE
COURT: I see. All right.
That's it. Thank you."
The court
allowed Alexis's counsel to ask follow-up questions, but sustained the
prosecutor's objection to questions about the assistant principal's opinion of
what happened at the fight.
This was
followed by another colloquy:
"[DEFENSE
COUNSEL]: Your Honor, the Court asked
about his investigation and if he spoke to witnesses, so I'd like to know if he
-- obviously disciplined Bryan. I would
like to know if he knew what happened based on what he heard.
"THE
COURT: He couldn't know what
happened. He was told what happened and
he came to some conclusions about what happened.
"[DEFENSE
COUNSEL]: Right. I would like to know what those conclusions
were, your Honor. That's what I'm
asking.
"[¶] . . . [¶]
"THE
COURT: His conclusions are not relevant
to this case. He's not the judge. I am.
"[DEFENSE
COUNSEL]: I understand.
"THE
COURT: So this is why I asked -- showed
him these things. And I guess I should
have followed up by saying: Would you --
in terms of what you were told about the fight and in terms now of observing
what occurred, would this in any way change your position about what happened
at that fight
"THE
WITNESS: It would -- based on the
information you just provided to me, it would affect my disciplining Alex, not
so much Bryan. He would still receive
the five-day suspension.
"THE
COURT: So in other words, until you saw
these photographs, you didn't know what the extent of his injuries were; is that
correct
"THE
WITNESS: That's correct.
"THE
COURT: Thank you. Anything else
"[DEFENSE
COUNSEL]: There's a lot of questions I
want to ask, your Honor. I just don't
want to get the ire of the Court up.
"THE
COURT: Counsel, ask your question and
there will be an objection or not, and I'll sustain it if there's an objection
and it's irrelevant.
"[DEFENSE
COUNSEL]: Because the Court asked, I'll
ask about your opinion as to what happened and what was your opinion as to what
happened
"THE
COURT: His opinion is not --
"[DEFENSE
COUNSEL]: But, your Honor, you asked if
being shown the photos would change his opinion.
"THE
COURT: I asked him, yes, it was his
opinion as to the discipline of Bryan.
That's all I'm concerned with about, the discipline, because he seemed
to be disciplining these people unequal.
That's all.
"[DEFENSE
COUNSEL]: Okay. That's fine, your Honor. I was more concerned with the Court asking
what his opinion of what happened was by showing those photographs.
"THE
COURT: No. Just observing what happened. He hadn't taken these photographs into
account. And he indicated that if he
[had] taken those into account, it apparently would have somewhat altered his
opinion as to what happened."
At this
point, defense counsel was allowed to question the assistant principal further.
The next
day of the trial, defense counsel made a motion for a mistrial "[b]ased on
the evidentiary rulings on Friday and the cross-examination of
the . . . defense witness by the Court showing the photographs
to that witness, who was not present [at the fight],
and . . . the demeanor of the Court on
Friday . . . ."
The court denied the mistrial motion.
We first
note that Alexis's counsel did not object at trial to these allegedly improper
actions in a timely fashion, and therefore has not preserved the issue of
judicial misconduct for appeal. (
258, 269.) "To obtain appellate
review of claimed prejudicial 'cross-examination' by the trial court,
appellants must have timely and specifically objected to that
examination." (People v. Camacho (1993) 19 Cal.App.4th 1737, 1745.) The objection must be made "when the
questioning occurred." (
556.) Further, counsel's mistrial motion
on the next court day was not a timely objection.[4] Nevertheless, we have reviewed the
complained-of actions by the court and conclude they did not constitute
misconduct and were not prejudicial to Alexis.
A trial
judge has a duty to control trial proceedings so that the evidence is fully
developed, ambiguities and conflicts are resolved as far as possible, and the
truth may be effectively ascertained. (
255; see also § 1044.) In the discharge
of this duty, a trial judge may, among other things, examine witnesses to
elicit or clarify testimony. (
241; Evid. Code, § 775.)
"The
power of a trial judge to question witnesses applies to cases tried to the
court as well as to a jury." (
"[I]t is not merely the right but the duty of a trial judge to see
that the evidence is fully developed before the trier of fact and to assure
that ambiguities and conflicts in the evidence are resolved insofar as
possible." (Ibid.)
" ' "[I]f a judge desires to be further informed on
certain points mentioned in the testimony it is entirely proper for him to ask
proper questions for the purpose of developing all the facts in regard to
them." ' " (
The trial court is given " ' "[c]onsiderable
latitude" ' " in questioning witnesses. (Ibid.)
In a bench
trial, there is no risk that a jury may infer from the judge's questions that
the judge is commenting adversely on defense witnesses' credibility. Therefore, a trial judge need not exercise
the same degree of caution in phrasing questions in a court trial as is
necessary in a jury trial. (See Cal.
Judges Benchbook: Civil
Proceedings—Trial (CJER 2d ed. 2010) § 8.60, p. 440.)
Of course,
in questioning witnesses, the trial court must remain scrupulously fair; it may
not disparage or discredit one party and ally itself with another. (People
v. Sturm (2006) 37 Cal.4th 1218, 1233, 1237-1238; People v. Sanders (1995) 11 Cal.4th 475, 531.)
Alexis
argues that juvenile court assumed the role of prosecutor. We disagree.
A judge does not become an advocate merely by asking questions. (People
v. Raviart, supra, 93 Cal.App.4th
at p. 272.) " 'The duty of a trial
judge, particularly in criminal cases, is more than that of an umpire; and
though his power to examine the witnesses should be exercised with discretion
and in such a way as not to prejudice the rights of the prosecution or the
accused, still he [or she] is not compelled to sit quietly by and see one
wrongfully acquitted or unjustly punished when a few questions asked from the
bench might elicit the truth.' " (
19 Cal.App.4th at p. 1746.)
The
juvenile court here did not assume the role of the prosecutor, create the
impressions it was allying itself with the prosecution or otherwise deprive
Alexis of a fair trial in a fair tribunal.
(People v. Harris (2005) 37
Cal.4th 310, 346-347.) The school
discipline issue was at most tangential to the prosecution's case against
Alexis. The court's questioning was
neither disparaging to the witness nor prejudicial to Alexis. Further, after the court completed its
questioning, it gave both counsel an opportunity to ask the witness additional
questions. Thus, through its involvement
in the questioning of witnesses, the trial court simply fulfilled its duty, in
a fair and impartial way, to see that the facts were presented clearly and
fully so as to elicit the truth. (See §
1044; People v. Carlucci,
On appeal,
" '[o]ur role . . . is not to determine whether the
trial judge's conduct left something to be desired, or even whether some
comments would have been better left unsaid.
Rather we must determine whether the judge's behavior was so prejudicial
that it denied [the defendant] a fair, as opposed to a perfect, trial.'
" (People v. Snow (2003) 30 Cal.4th 43, 78, quoting
397, 402.) "[T]he misconduct of a
trial judge which will warrant a reversal of the judgment should be so definite
and apparent as to leave little doubt that it has resulted in depriving the
accused of a fair and impartial trial." (People
v. Browning (1933) 132 Cal.App. 136, 153; accord, People v. Kendrick (1961) 56 Cal.2d 71, 92.) We find no such misconduct by the juvenile
court here.
Assuming,
arguendo that the questions were improper, the alleged misconduct was harmless
under any standard of review. (
18, 24; People v. Cudjo (1993) 6
Cal.4th 585, 610-612.) The evidence was
overwhelming. Alexis admitted he hit
Bryan with the chain. The assistant
principal's testimony about Bryan's character and reputation for truthfulness
and violent tendencies was not undermined by the peripheral issue of school
discipline associated with this incident.
Other witnesses testified that Bryan was dishonest and violent.
DISPOSITION
The
judgment is modified by striking the true finding of battery (§ 242; count
5). As so modified, the judgment is
affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
[1]
All further statutory references
are to the Penal Code unless otherwise specified.
[2]
In connection with the felony
assault charges and the felony battery charge, the court sustained allegations
of personal infliction of great bodily injury and personal use of a deadly
weapon. (§§ 1192.7, subd. (c)(8) &
(23), 12022.7, subd. (a).)
