P. v. Ackerman
Filed 2/26/13 P. v. Ackerman CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA CHARLES
ACKERMAN,
Defendant and Appellant.
C071160
(Super. Ct. No. 11F05717)
A jury
found defendant Joshua Charles Ackerman guilty of felony vandalism and the
misdemeanor of firing a BB gun in a grossly negligent manner. (Pen. Code, §§ 594, subd. (a) [count
one], 246.3, subd. (b) [count two].) The
trial court granted formal probation
on the felony count and imposed a one-year jail term for the misdemeanor.
On
abused its discretion in denying his motion for disclosure of juror
identification information (or alternately for a mistrial for juror
misconduct). He also contends he cannot
be punished both for firing the BB gun and for the act of vandalism that
resulted. We shall affirm the verdicts,
but must remand for resentencing and stay execution of sentence on count two.
Although
both parties provide a thorough summary
of the evidence at trial, the arguments on appeal implicate only a sliver of
the facts underlying the convictions, and we do not need to assess
prejudice. We thus note only that two
passengers riding on a commuter bus heard a loud bang. The window next to one of them
shattered. The other saw the driver of a
blue “Super Shuttle†van next to the bus with a pistol in his
window. As the driver slowed down for
traffic in front of him, he pulled the pistol back into the van. At trial, the second bus passenger identified
defendant as the driver of the van.
Based on Super Shuttle’s satellite tracking data, the only van in the
vicinity of the bus at that time was one that defendant normally drove. We will include any other pertinent facts in
the Discussion.
DISCUSSION
I. Motion to
Disclose Juror Identification Information
A
defendant may obtain access to personal juror identifying
based on declarations that prima facie
establishes good cause in support of a motion for new trial or other reason, if
the trial court does not find a compelling interest against disclosure. We review the trial court’s ruling for an
abuse of discretion. (
163 Cal.App.4th 978, 989, 991 (Carrasco);
Code Civ. Proc., § 237, subd. (b).)
Defendant’s
fiancée provided a declaration in support of his motion. She stated that after a lunch break in the
midst of closing arguments, she was seated about 10 feet from a male juror
(whom she described with some particularity, and whom defense counsel
identified as Juror No. 8) who was
talking to one or two “middle-aged†female jurors (not otherwise
identified). The fiancée heard a snippet
of the male juror’s conversation lasting about 30 to 60 seconds. “What I heard was something said about
Super Shuttle, and there being some sort of irony.†The jurors noticed the fiancée looking at
them and stopped talking. The fiancée
informed defense counsel about her observations after the jury returned its
verdicts.
Defense counsel argued it was thus
necessary to obtain the juror identification information in order to
investigate the exact nature of the discussion.
Counsel also contended that based on the fiancée’s declaration,
defendant was entitled to a mistrial because the jurors “were discussing
specific facts of the case prior to deliberations.â€
The trial
court found this showing insufficient either to warrant disclosure or grant a
mistrial. There was simply speculation
about misconduct without any facts providing a foundation for a finding of
actual misconduct. The court
consequently did not consider any interest against disclosure.
The
fiancée heard only a reference that the involvement in this case of the Super
Shuttle company in some manner struck Juror No. 8 as “ironic†(assuming
the juror was using the word in its proper sense). It is only speculation that this involved
deliberation on any issue relating to defendant’s guilt (e.g., his identity as
the driver of the van) that was outside of the presence of the other jurors, as
opposed to a simple commentary on the involvement of Super Shuttle in the
circumstances of this case in the abstract.
We certainly cannot say that it was unreasonable
for the trial court to conclude this was only threadbare evidence of potential
misconduct that was insufficient to outweigh the jurors’ privacy
interests. (Carrasco, supra,
163 Cal.App.4th at p. 990.) We
thus do not discern any abuse of discretion, and reject defendant’s argument to
the contrary.
II.
Impermissible Multiple Punishment
“[Penal
Code] [s]ection 654 [(section 654)] precludes multiple punishment where an
act . . . violates more than one criminal statute but a defendant has
only a single intent and
objective.†(People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.) If it finds multiple punishment would run
afoul of section 654, a trial court must impose but stay execution of sentence
on all offenses except the one with the longest punishment. (Ibid.) We review the trial court’s
multiple punishment for substantial evidence—the issue did not arise explicitly
at sentencing,
title="">[1]
but this does not forfeit it on appeal.
(§ 654.)
Defendant
contends there was a single act underlying both convictions—the firing
intentionally of the BB gun, which resulted in the act of vandalism. The People suggest only that shattering the
bus window was a mere happenstance that was not necessarily defendant’s
intended object in firing the gun, vaguely adverting as well to “multiple or
simultaneous objectives, independent of and not merely incidental to each
other†without specifying what these
independent objectives might be.
The
vandalism offense requires a malicious act—an intentional act accompanied with
a desire to injure or a reckless disregard of the risk of damage (cf.
23 Cal.App.4th 1488, 1493 [finding on that basis that vandalism is a crime
of moral turpitude]), which results in damage.
The weapons conviction requires only the intent to fire the BB gun
(without intending any further consequence), under circumstances demonstrating
at least an indifference to the high degree of risk of injury or death, if not
conscious disregard of the risk. (
126 Cal.App.4th 1344, 1361 [elements of offense]; People v. Brunette (2011) 194 Cal.App.4th 268, 285 [gross
negligence and recklessness defined].)
The People have failed to posit a plausible manner in which the trial
court could have inferred from the evidence that defendant intended to fire a
single shot from the BB gun with an
intent to damage the bus (or a reckless disregard of that risk) for purposes of
vandalism but did not have the same intent (without concern for the risk of
injury or death to other persons) for purposes of the weapons offense.
Neither
party cites a case involving similar circumstances. Our research reveals People v. Fuller (1975) 53 Cal.App.3d 417, in which the
defendant displayed a rifle, took aim at the victim, and fired a shot into the
victim; Fuller held that the
defendant could properly be subject to three convictions for brandishing the
weapon, assault with a rifle, and battery, but could be subject to punishment
only for the greatest charge (assault).
(Id. at
pp. 419-420.) We think this
sufficiently analogous to the present case; it would parse hairs too finely to
attempt to infer distinct intentions in the one delinquent act of intentionally
firing the gun between the firing of the BB gun and the vandalism that
resulted.
The
sentencing on the two convictions was interrelated, so we cannot simply correct
it on appeal. We shall remand with
directions to impose but stay execution of sentence on the lesser misdemeanor
offense, and allow the trial court to determine if it wishes to designate the
jail term as a condition of probation.
DISPOSITION
Defendant’s
convictions are affirmed. The matter is
remanded for resentencing with directions to impose but stay execution of
sentence for the misdemeanor conviction (count two).
BUTZ , Acting P. J.
We concur:
MAURO , J.
HOCH , J.
name="_ftn1" title="">[1] The probation report did not recommend any
jail time as a condition of the grant of probation for the felony vandalism
conviction “to preserve time should the defendant re-offend in the future,†and
in light of the jail term for the misdemeanor conviction. The report did not address section 654 in any
manner.
