P. v.
Filed 1/8/13 P.
v. Caceres CA2/5
OFFICIAL REPORTS
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8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS CACERES,
Defendant and Appellant.
B238003
(Los Angeles County Super. Ct.
No. MA053753)
APPEAL
from a judgment of the Superior Court of
County, Carlos A. Chung, Judge. Affirmed.
Law
Office of Eric Cioffi and Eric Cioffi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General,
for Plaintiff and Respondent.
____________________________________
The jury found defendant and appellant Luis Caceres
guilty in count 1 of assault by a state
prisoner with a deadly weapon (Pen. Code, § 4501)
count 2 of assault by a state prisoner by means likely to produce great bodily
injury (§ 4501). In a bifurcated
proceeding, defendant admitted suffering a prior prison term (§ 667.5,
subd. (b)).
name="_ftnref2" title="">[2]
The trial
court sentenced defendant to five years in state
prison. It imposed the middle term
of four years on count 1, plus an additional year for the prior prison
term. The court stayed the sentence in
count 2 pursuant to section 654.
argues the trial court: (1) erred
by refusing to dismiss count 2; (2) erred when it failed to give the requested
self-defense instruction; and (3) abused
its discretion when it restricted defendant’s ability to cross-examine
correctional officers.
We affirm
the judgment.
FACTS
On March 3, 2011, defendant and
two other inmates attacked the victim, Frank Frye, at the state prison in Lancaster. The three correctional officers who witnessed
and responded to the fight observed defendant and the two other inmates on top
of Frye, hitting him in the torso and head.
Two of the officers testified that Frye was in a defensive position, but
that they also saw him throwing punches.
The third officer did not see Frye punching his attackers. The officers did not see how the fight
started or learn what caused it. The
first officer to observe the fight testified that it may have been in progress
for up to two minutes before he noticed it and stated that “a lot can happen in
two minutes.â€
In response
to the fight, the officers “put down the yard†by sounding an alarm requiring
all inmates to lie down on the ground.
All of the prisoners in the yard complied, with the exception of
defendant and the two other inmates punching Frye. One officer employed pepper spray on the fighting
inmates, which caused two of them to stop hitting Frye. Defendant continued to punch Frye undeterred
until an officer was able to subdue him with a baton. All four inmates were handcuffed and taken
from the yard for medical examination.
The officers
observed that Frye had injuries on his head resembling slash marks. The vocational nurse who examined Frye
testified the slash marks were consistent with wounds caused by a razor
blade. He also observed abrasions on
Frye’s back and hands, which were consistent with injuries one would sustain
after being scraped on cement.
Inmates are
issued razor blades for personal hygiene purposes. It is common for inmates to fashion these
razors into weapons. No weapons were
recovered from any of the individuals involved in the fight, or from the
general area in the yard where the fight took place. Frye may have had a weapon. Frye sustained the slash injuries, and it was
possible that an inmate not involved in the fight had inflicted them.
DISCUSSION
Whether the Trial Court
Erred in Refusing to Dismiss Count 2
Defendant
was convicted under section 4501 in both counts 1 and 2. Section 4501 provides in pertinent part:
person confined in a state prison of this state who commits an assault upon the
person of another with a deadly weapon or instrument, or by any means of force
likely to produce great bodily injury, shall be guilty of a felony and shall be
imprisoned in the state prison for two, four, or six years to be served
consecutively.†Defendant argues his two
convictions under section 4501 were convictions for the same offense, and the
trial court erred by refusing to dismiss his conviction in count 2.
California
law distinguishes between three individual but related concepts: multiple prosecution, multiple conviction,
and multiple punishment. Under section
954, the prosecution is permitted to charge
a defendant in different counts under different statements of the same offense,
or to charge a defendant with multiple offenses based on a single act or
indivisible course of conduct. A
defendant may be convicted of multiple
offenses based on a single criminal act (People
v. Montoya (2004) 33 Cal.4th 1031, 1034; People v. Ortega (1998) 19 Cal.4th 686, 692 (Ortega)), with a single “‘judicially created exception to the
general rule . . . “prohibit[ing] multiple convictions based on necessarily
included offenses.†[Citation.] . .
. [Citation.]’†(People
v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) The California Constitution prohibits
multiple convictions of a defendant for the same offense, otherwise known as
double jeopardy. (Cal. Const., art. I,
§ 15.) Moreover, despite the fact
that a defendant may be convicted for multiple offenses on the basis of one
act, section 654 prohibits punishment
for a single act under more than one Penal Code provision. The tension between sections 954 and 654 has
been reconciled by allowing multiple convictions for a single act but imposing
punishment, “under the provision that provides for the longest potential term
of imprisonment,†and staying punishment for any other convictions related to
the act. (§ 654; Correa, supra, at
p. 337; Ortega,
We conclude
that defendant may be properly convicted under section 4501 in both counts,
because he was convicted of two separate offenses. Defendant was convicted in count 1 of
assaulting Frye with a deadly weapon—specifically an “inmate manufactured
slashing instrument.†In count 2, he was
convicted of assaulting Frye using his fists, a means of force likely to cause
great bodily injury.
The
prosecution distinguished between the two counts at length in its argument to
the jury, emphasizing that count 1 related only to defendant’s use of a
slashing instrument or to his aiding and abetting of another attacker’s use of
a slashing instrument, and that count 2 related only to defendant’s use of his
fists to punch Frye:
“Count one,
assault with a deadly weapon . . . . [¶]
. . . [¶] Let’s talk about a deadly
weapon. In this case it was a slashing
instrument, and we know that by the nature of the wounds on Frank Frye. The nurse Calvin Young dubbed them slashes
and you will see that on the medical form.
[¶] . . . [¶] And although the
razor in our case is very, very small, it is absolutely capable of producing
death or great bodily injury and we know that because the nurse, Mr. Young,
actually said he has seen injuries that resembled Mr. Frye’s in people that
were trying to commit suicide and they were using those razors. We know that is capable of doing that. And, in fact, it’s one of the most common
weapons used by prisoners. [¶] So, again, the focus of your inquiry here is
capable, if used correctly, of being a deadly weapon. A razor blade absolutely is. If you cut someone in the carotid artery, the
femoral artery, places that would cause instant bleeding, heavy bleeding, it is
absolutely a deadly weapon. [¶] . . .
[¶] So it comes down to who used the
razor. We don’t know. . . . Luckily, it doesn’t matter because there are
two very distinct theories that you can rely on. One, we can believe that [defendant] had the
razor and used it . . . . And although,
again, none of the officers saw a weapon, that could be explained. It is small.
You could hold it in your hand.
You are not going to see it. It
is very small. So what may look like
punching, he is actually taking that razor and slashing at him. [¶] Or
two . . . aiding and abetting. . . .
[I]f [another one of the attackers] had the razor . . . and they were
doing the cutting, [defendant] is still guilty.â€
“[With
respect to count 2,] is being punched in the face and the torso and all over
the body force capable of causing great bodily injury? And I think we can all agree that it in fact
is. We have all heard of that one punch
knock-out, and we know that you can break a jaw. You can break multiple bones. You can have black eyes, split lips, get
stitches. These are all effects of being
punched in the face and the torso. [¶] .
. . [¶] So the defendant when he was
punching Frank Frye over and over again, he committed an assault. He knew he was doing it, intended to do it,
had the ability to do it, and the force he was using is absolutely capable of
creating great bodily injury. And that
is count two.â€
The jury was
instructed as to aiding and abetting under CALJIC No. 3.01, in addition to
being instructed as to assault by prisoner with a deadly weapon or by means of
force likely to produce great bodily injury under CALJIC No. 7.36. It returned a verdict in count 1 finding
defendant guilty of assault by state prisoner with a deadly weapon, to wit, an
inmate fashioned slashing instrument, in violation of section 4501, and in
count 2, guilty of assault by state prisoner by means of force likely to cause
great bodily harm, also in violation of section 4501. The jury verdicts clearly distinguished
between the slashing and punching assaults.
Defendant
argues that assault by means of a deadly weapon and assault by means of force
likely to cause great bodily injury do not constitute separate offenses but are
merely different means of committing a single offense. This argument misses the point. Undoubtedly, the crime of assault conduct
described in section 4501can be accomplished by either use of a deadly weapon or
by use of force likely to cause great bodily injury. But in this case, where two different acts independently
accomplish distinct crimes under the same provision, two offenses have been
committed. The two acts were independent
and of a different nature, with each constituting a discrete form of assault by
a prisoner.
We are not
swayed by defendant’s argument that California precedent mandates a different
result. In People v. Ryan (2006) 138 Cal.App.4th 360, the defendant was
convicted in two counts for forging checks and convicted in an additional two
counts for later passing the same checks.
(Id. at pp. 362-363.) Both the acts of forging and passing the
checks were punishable pursuant to the same statutory provision and, as in this
case, constituted different means of committing the same crime. (Id.
at pp. 366-368.) The
for forging the checks, while allowing the two convictions for passing the
checks to stand, reasoning that the “conduct in each incident appear[ed] to be
more completely covered by [the affirmed convictions.]†(Id.
at p. 371.) Ryan is distinguishable from this case because there, the defendant
could not have passed the forged check if it were not, in fact, forged. One act depended entirely on the other for
its commission, so the two actions were components of the same offense. Here, defendant’s use of a razor and use of
his fists were entirely independent and, as such, constituted two separate
offenses.
Defendant
also relies on People v. Craig (1941)
17 Cal.2d 453, in which a rape conviction was vacated where two counts were
brought under the same statute, based on a single act of intercourse. (Id.
at p. 454.) The defendant was charged
with rape accomplished by force and violence, and rape
upon a child under the age of consent, under different subdivisions of the same
statute. (Id. at pp. 454-455.) The Craig
court determined there was but one offense, because the defendant performed
only one act of intercourse on one victim.
(Id. at pp. 454, 457.) Craig also differs
significantly from this case. Unlike
based on one act but were instead founded upon discrete forms of assault, both
of which could be committed independent of the other.
Finally,
defendant cites to no cases holding that a defendant may not be convicted in
several counts under the same provision where the defendant’s actions each
constitute a crime independent of the other, and indeed, precedent shows that
the opposite is true. (
[the defendant guilty of three counts of rape although penetrations occurred in
rapid succession and for the same purpose]; see also People v. Trotter (1992) 7 Cal.App.4th 363 [extending the reasoning
in Harrison to non-sexual assault
cases].)
For all of
the foregoing reasons, we hold the trial court did not err in refusing to
dismiss count 2.
Whether the Trial Court
Erred in Refusing to Instruct on Self-Defense
Trial
counsel requested the trial court instruct the jury on the right to
self-defense under Judicial Council of California Criminal Jury Instructions
(2011-2012) CALCRIM No. 3470. He
argued the instruction was supported because Frye had been observed throwing
punches by two of the officers. The
trial court denied the request because there was insufficient factual basis to
support the instruction. The court reasoned
that evidence had been presented that the fight was by three men against one,
and that without more, giving the self-defense instruction would not be
appropriate.
Defendant
contests the trial court’s ruling and argues the court erroneously judged the
credibility of the defense’s evidence.
He contends substantial evidence in the record supported giving the
instruction. In addition to the evidence
that Frye may have been throwing punches during the fight, defendant contends
there is circumstantial evidence defendant acted in self-defense, because none
of the officers saw how the fight started.
They did not know who instigated the fight or how many people were
initially involved, and one officer never ruled out the possibility that Frye
had a weapon, or that an inmate not involved in the fight could have caused
Frye’s slash injuries. Defendant asserts
the trial court’s refusal to give the instruction deprived him of his
constitutional right to present a defense.
“‘A
defendant has a constitutional right
to have the jury determine every material issue presented by the
evidence.’ [Citation.]†(People
v. Lewis (2001) 25 Cal.4th 610, 645.)
In accordance with this right, “[a] court must instruct sua sponte on
general principles of law that are closely and openly connected with the facts
presented at trial.†(
287.) But “‘[a] trial court has no duty
to instruct the jury on a defense—even at the defendant’s request—unless the
defense is supported by substantial evidence.’
[Citation.] ‘In other words,
“[t]he court should instruct the jury on every theory of the case, but only to
the extent each is supported by substantial evidence.†[Citation.]’
[Citation.] ‘If the evidence
should prove minimal and insubstantial, however, the court need not instruct on
its effect.’ [Citation.] Instructions only need be given where the
‘evidence [is] substantial enough to merit consideration.’ [Citation.]â€
(People v. Hill (2005) 131
Cal.App.4th 1089, 1101 (Hill),
overruled on other grounds in People v.
French (2008) 43 Cal.4th 36, 48, fn. 5.)
This court independently reviews the trial court’s decision to refuse to
instruct on a defense. (
596.)
CALCRIM No.
3470 instructs in pertinent part: “The
defendant acted in lawful [self-defense] if:
“1. The defendant reasonably believed that [he] .
. . was in imminent danger of suffering bodily injury [or was in imminent
danger of being touched unlawfully];
“2. The defendant reasonably believed that the
immediate use of force was necessary to defend against that danger;
“AND
“3. The defendant used no more force than was
reasonably necessary to defend against that danger.â€
No evidence
was presented that Frye was the aggressor.
Although two officers observed Frye to be throwing punches, they
qualified that he did so from a defensive position. Frye was on the ground, first with three men
on top of him and attacking him, and then with defendant alone on top and
attacking. The fact that Frye may have
taken some action to protect himself rather than enduring the beating does not
in itself constitute substantial evidence supporting a self-defense
instruction. Furthermore, beyond the
lack of substantial evidence that Frye instigated the fight or placed defendant
in fear of imminent danger of suffering bodily injury or being touched
unlawfully, there was no evidence from which the jury could infer that
defendant reasonably believed immediate use of force was necessary to defend
himself, or that the force used was no more than reasonably necessary. Initially, two other inmates were beating
Frye along with defendant. Frye was substantially
out-numbered, and the relentless punching of the three inmates was more force
than was needed to prevent any danger he might have posed to them. Once officers recognized that a fight was in
progress, they put down the yard and proceeded to break up the fight. At that point, it was no longer necessary for
defendant to apply any force. However,
defendant persisted in punching Frye and continued to do so despite being
admonished by the officers and pepper-sprayed.
An officer had to strike defendant with a baton to end his attack on
Frye. Our review of the record reveals no
evidence defendant assaulted Frye in order to lawfully exercise a right of
self-defense.
Defendant
urges us to conclude the trial court erred on the basis of a series of
unknowns: it was unknown how the fight
started; it was unknown whether Frye was the instigator; it was unknown whether
Frye was initially assisted by other inmates; and it was unknown whether Frye
might have had a weapon at some time. A
lack of evidence that defendant was not
acting in self-defense is not substantial evidence that he was defending himself. We
will not reverse the trial court’s ruling absent substantial evidence the
instruction should have been given. (
Because
there was no substantial evidence to support a self-defense instruction, it
necessarily follows that defendant was not deprived of his constitutional right
to present a defense.
Whether the Trial
Court Abused its Discretion in Restricting the Defense’s Cross-Examination of
Officers
Defendant
next argues the trial court abused its discretion when it restricted the
defense’s cross-examination of the officers.
In particular, trial counsel sought to elicit testimony regarding Frye’s
disciplinary history and history of previous altercations. The court denied the request, finding it was
more prejudicial than probative under California Evidence Code section
352. The court stated that Frye’s prior
history was tangential to the issues and speculative. It did, however, allow the defense to
question the officers regarding whether they had seen the start of the fight
and to question them as to whether Frye might have received his slash injuries
prior to the fight.
A trial
court’s exercise of discretion in excluding evidence “‘must not be disturbed on
appeal except on a showing that the
court exercised its discretion in an arbitrary, capricious or patently absurd
manner that resulted in a manifest miscarriage of justice. [Citations.]’
[Citation.]†(
1060, 1124-1125.) Evidence Code section
352 provides: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.â€
Evidence is probative if it “ha[s] a ‘tendency in reason to prove or
disprove any disputed fact’ [citation] . . . .â€
(People v. Prince (2007) 40
Cal.4th 1179, 1237.) “‘[U]ndue prejudice
is that which “uniquely tends to evoke an emotional bias against a party as an
individual, while having only slight probative value with regard to the
issues.†[Citations.]’ [Citation.]â€
(People v. Jones (2012) 54
Cal.4th 1, 61.) “‘“In other words,
evidence should be excluded as unduly prejudicial when it is of such nature as
to inflame the emotions of the jury, motivating them to use the information,
not to logically evaluate the point upon which it is relevant, but to reward or
punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury will use it
for an illegitimate purpose.†[Citation.]’ [Citation.]â€
(People v. Scott (2011) 52
Cal.4th 452, 491.)
“Evidence Code
section 1101, subdivision (a) provides that ‘evidence of a person’s character
or a trait of his or her character . . . is inadmissible when offered to prove
his or her conduct on a specified occasion.’
Evidence Code section 1103, subdivision (a)(1) provides an exception to
Evidence Code section 1101, subdivision (a) when a defendant offers evidence
regarding the character or trait of a victim ‘to prove conduct of the victim in
conformity with the character or trait of character.’ [¶]
. . . Where no evidence is presented that the victim
posed a threat to the defendant, exclusion of evidence regarding the victim’s
propensity for violence is proper.†(
789, 827-828.)
Here, as we
have previously discussed, the record does not contain substantial evidence to
support a theory of self-defense. Evidence of Frye’s disciplinary record,
unconnected in any way to this altercation, was of dubious relevance and
certainly possessed the potential for confusing the jury and consuming an undue
amount of time. Defendant has not
established an abuse of discretion under section 352.
DISPOSITION
The judgment is affirmed.
KRIEGLER,
J.
We concur:
ARMSTRONG,
Acting P. J.
MOSK,
J.
name="_ftn1" title="">[1] Unless otherwise indicated, all statutory references are to
the Penal Code.
chose not to proceed on a second prior prison term allegation in exchange for
defendant waiving his right to jury trial on the prior prison term allegations.
