Filed 9/20/17 P. v. Lizarraga CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ALBERTO LIZARRAGA, Defendant and Appellant.

F072112 (Super. Ct. No. BF157075A) OPINION

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Rebecca Whitfield and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.

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In a single count, Alberto Lizarraga was charged and convicted of “escape or attempt to escape.” Neither the trial court nor the prosecutor explained to the jury it must unanimously agree on which crime Lizarraga committed when finding him guilty. As a result, the judgment must be reversed because the record does not establish the jury unanimously agreed that Lizarraga was guilty of either escape or attempt to escape.

FACTUAL AND PROCEDURAL SUMMARY

The only count of the information charged Lizarraga with escape or attempt to escape in violation of Penal Code section 4532, subdivision (b)(1).[1] The information also alleged as enhancements that Lizarraga had suffered a prior conviction which constituted a strike within the meaning of section 667, subdivisions (b)-(i), and had served a prior prison term as a result of that conviction within the meaning of section 667.5, subdivision (b).

On September 9, 2014, Kern County Deputy Sheriff Jonathan Boyce was assigned to transport inmates, including Lizarraga, from the jail to the courthouse and back in an unmarked sheriff’s vehicle. The incident occurred when Boyce was returning Lizarraga to the jail. Lizarraga, Boyce, and a second deputy, Justin Newton, were exiting the south door of the courthouse and walking to the vehicle which was parked about 20 feet away from the door. As they exited, Lizarraga turned towards Newton and said “Fuck this; I’m out of here.” Lizarraga then attempted to headbutt Newton and run away, but the headbutt failed because Newton leaned backwards. Newton took Lizarraga to the ground. Boyce assisted in restraining Lizarraga until additional officers arrived.

On cross-examination, Boyce explained he and Newton picked up Lizarraga from the jail and transported him to the courthouse that morning. When they picked up Lizarraga, he was wearing leg restraints and handcuffs attached to a waist chain. Those restraints remained in place at all times. While in court, Lizarraga became upset and was yelling when the two deputies removed him from the courtroom. Lizarraga had calmed down somewhat by the time the deputies were walking Lizarraga out of the courthouse.

Boyce explained the sequence of events on cross-examination:

“Q: And after Deputy Newton moved his body backwards, [Lizarraga] then turned back around facing south?

“A: I believe as soon as he moved back, Deputy Newton grabbed him to stop him from attempting to go anywhere else.

“Q: Okay. So [Lizarraga] turns towards Newton, tries to headbutt him, Newton backs up a little bit, and then Newton immediately grabs him?

“A: Yeah, about a second after that he grabbed him and forced him to the ground.

“Q: Okay. When he forced [Lizarraga] to the ground, which way was [Lizarraga] facing? South towards the vehicle or north toward the courthouse?

“A: I think at the time he had managed to turn – I guess west – turned a little bit because he was trying to get away at the same time. That’s – grabbed him forced him to the ground.

“Q: So [Lizarraga] didn’t get to take any steps?

“A: I don’t – I’m not sure if he did or not. It all happened pretty quick.”

Newton’s description of the events leading to Lizarraga’s departure from the courthouse was consistent with Boyce’s description, including Lizarraga becoming upset and being removed from the courtroom by Newton and Boyce. Because he was concerned Lizarraga might act out, Newton was grasping the back of Lizarraga’s shirt so he could feel if Lizarraga tried to pull away. After exiting the courthouse, Lizarraga yelled “Fuck this; I’m out of here.” Lizarraga turned and attempted to headbutt Newton, but Newton moved out of the way. Lizarraga then attempted to turn away from Newton to escape. Lizarraga turned and took a couple of steps. Newton lost his hold on Lizarraga’s shirt, but grabbed Lizarraga’s left arm. Newton explained the sequence of events:

“Q: Okay. [Lizarraga] actually did get away from your grasp?

“A: Correct; that’s when I used the same hand, grabbed his arm.

“Q: And you said he got some distance between [you and him]. About how much distance would you estimate he got?

“A: I’d say a couple of steps, maybe. It happened really fast. It was just one thing after the other.

“Q: And what happened after you grabbed his arm?

“A: I kind of pulled, and then I wrapped my left hand around his head and pulled it in towards my chest, and then we went over a bench and I landed on top of him.”

Lizarraga testified in his defense. He agreed he was transported to court that morning by Boyce and Newton, and that he became upset in court. Newton and Boyce removed him from the courtroom, although Lizarraga claimed they “roughed [him] up” as they removed him to the jury room for a short period of time. Lizarraga testified he felt like he had been gagged, kidnapped, and thrown in the closet. Lizarraga was still upset as he and the two deputies walked to the vehicle. At this point one of the deputies grabbed the waist chain, and this upset Lizarraga further. He pushed against the deputy and told him to let go so he could walk to the vehicle without being held. “I didn’t need my mommy to hold my hand to the car. I could do it myself.” That is when he was tackled by Newton. Lizarraga never intended to escape from custody, and knew he could not do so because he was shackled. Lizarraga denied trying to headbutt Newton, claiming he was simply attempting to remove Newton’s hand by pulling away.

The jury found Lizarraga guilty as charged. In a bifurcated proceeding, the trial court found true the strike prior and the prior prison term allegations. Lizarraga was sentenced to a term of one year and four months consecutive to the sentences imposed in other cases.

DISCUSSION

I. Instructional Error

Lizarraga argues the prosecutor committed misconduct during closing argument by asserting the acts in this case constituted an escape. We need not address Lizarraga’s prosecutorial misconduct claim because we must reverse on other grounds. During our review of the record we identified an issue not briefed by the parties. The information charged Lizarraga with two crimes in a single count, escape and attempt to escape. The jury found Lizarraga guilty of “Escape or Attempting to Escape” in violation of section 4532, subdivision (b)(1).[2] We ordered the parties to provide additional briefing on the issue of whether there was any way to determine if the jury returned a unanimous verdict since Lizarraga was found guilty of two crimes in a single verdict form.

“In a criminal case, a jury verdict must be unanimous.… Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ ” (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) “ ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ ” (Ibid.)

A unanimity instruction is required when the jurors could disagree which act a defendant committed and yet convict him of the charged crime. (People v. Beardslee (1991) 53 Cal.3d 68, 93.) “A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses.” (People v. Maury (2003) 30 Cal.4th 342, 422 (Maury).)

For reasons that are unclear, the prosecutor charged Lizarraga with both attempted escape and escape in a single count in the information. We suspect the prosecutor merely followed the language of section 4532, subdivision (b)(1) which begins “Every prisoner arrested and booked for, charged with, or convicted of a felony … who is confined in any county or city jail, … is in the lawful custody of any officer or person, … who escapes or attempts to escape from a county or city jail, … or from the custody of any officer or person in whose lawful custody he or she is … is guilty of a felony .…” The verdict form was prepared in the same manner.

Regardless of the statutory language, Lizarraga was charged with two distinct crimes. The record establishes that Lizarraga was charged with a single violation of section 4532, subdivision (b)(1), which could have occurred if the jury found Lizarraga guilty of either escape or attempted escape. In other words, the evidence suggests more than one discrete crime occurred. Therefore, the prosecution was required to elect among the crimes or the court was required to instruct the jury it must agree on the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132.)

The prosecutor did not elect among the two distinct crimes, instead arguing in his closing argument that Lizarraga escaped from custody, and attempted to escape from custody. At no time did the prosecutor inform the jury it would have to unanimously agree on whether Lizarraga was guilty of escape or attempt to escape.

Nor did the trial court instruct the jury with a unanimity instruction. (CALCRIM No. 3500 et. seq.) It instructed the jury that Lizarraga was charged with attempted escape and escape and provided the elements for each crime. (CALCRIM Nos. 208 and 2760.) The trial court informed the jury that they must reach a unanimous verdict (CALCRIM No. 3550), but did not instruct the jury it must reach separate verdicts for each count (CALCRIM No. 3515 or 3516) since only one count was charged.

The Attorney General’s argument in response to our letter requesting additional briefing was based on the theory that section 4532, subdivision (b)(1) creates only one crime that may be committed in two distinct ways. This theory must be rejected because the Supreme Court has held that escape and attempt to escape are distinct crimes with different elements.

In People v. Bailey (2012) 54 Cal.4th 740 (Bailey), the defendant was a prisoner in the Correctional Training Facility in Soledad. He sawed through the bars of his cell window, removed the windowpane, cut through a metal screen, and breached four fences. He was discovered in an area where inmates were not permitted, but still inside the confines of the prison. When arrested, defendant admitted he was trying to escape.

The prosecutor charged and tried defendant with escape from custody in violation of section 4530, subdivision (b), even though the information also contained a reference to “willfully and unlawfully escape and attempt to escape.” (Bailey, 54 Cal.4th at p. 745.) With the consent of both parties, the jury was not instructed with an attempt instruction. (Id. at p. 746.) The jury found defendant guilty of escape from prison. (Id. at p. 747.)

The Court of Appeal reversed the conviction, concluding the evidence was insufficient to prove an escape because an escape required the inmate to reach beyond the outer boundaries of the prison facility. (Bailey, 54 Cal.4th at p. 747.) The Court of Appeal also concluded that although there was ample evidence defendant attempted to escape, it refused to modify the verdict because an attempt to escape required the inmate to have the specific intent to escape that escape does not. Therefore, attempt to escape is not a lesser included offense of escape. The conflicting evidence of defendant’s intent at trial required the jury to determine whether the evidence proved the defendant’s intent.[3] (Ibid.)

The Supreme Court agreed with the Court of Appeal that attempt to escape is not a lesser included offense of escape. It began its analysis by observing that case law has defined escape as the unauthorized or unlawful departure of a prisoner from the limits of his custody, and that escape does not require any specific mental state, only general criminal intent. (Bailey, 54 Cal.4th at pp. 748-749.)

Attempt to escape, however, requires the prosecution to prove the defendant had the specific intent to escape. (Bailey, 54 Cal.4th at p. 749.) “Consequently, it is ‘error not to instruct that the crime of attempt to escape require[s] a specific intent on the part of [the defendant] to escape from the jail, plus a direct, unequivocal act to effect that purpose.’ ” (Ibid.) Applying the elements test, the Supreme Court concluded that attempt to escape is not a lesser included offense of escape because of the differences in the mental state required by the offenses. (Ibid.)

The Supreme Court’s analysis in Bailey establishes that escape and attempt to escape are two distinct crimes with different elements. In this case, the trial court recognized the difference in elements of the two crimes. It instructed the jury that Lizarraga was charged with attempted escape and escape and provided the elements for each crime. (CALCRIM Nos. 208 and 2760.)

It is readily apparent that these circumstances make it impossible to be certain the jury unanimously agreed that Lizarraga was guilty of either escape or attempt to escape. Some of the jurors may have concluded he was guilty of escape, while others may have concluded he was guilty of attempt to escape. For example, some jurors may have concluded Lizarraga did not intend to escape, but that he actually escaped from custody of the deputies, and was thus guilty of escape. Other jurors may have concluded Lizarraga did not escape from the custody of the deputies, but he attempted to do so with the required mental state and was thus guilty of attempt to escape. The failure to ensure the jury reached a unanimous verdict on either crime requires the verdict be reversed.

We note that Maury, supra, 30 Cal.4th at p. 422, observed that jury unanimity typically applies to acts which could have been charged as separate offenses. For example, a defendant may have been charged with a single count of spousal abuse based on a series of acts that occurred over several hours, any one of which would be sufficient to support a conviction. A unanimity instruction would be required in such a case to ensure the jury unanimously agreed on which act the verdict was based before reaching a guilty verdict.

This case, however, is not a typical case. Instead of charging Lizarraga with two distinct offenses in separate counts, he was charged with two offenses in one count. Moreover, the jury returned a verdict purporting to find him guilty of both offenses in a single verdict. As a result, we are forced to speculate about whether the jury unanimously agreed that Lizarraga was guilty of either escape or attempt to escape. This we cannot do.

II. Sufficiency of the Evidence

We will remand the matter for retrial at the election of the People. The evidence in the record is insufficient to support a conviction for escape. The evidence is, however, sufficient to support a conviction for attempted escape. Accordingly, should the People elect, on remand, to retry Lizarraga, they may do so only for attempted escape.

When considering the sufficiency of the evidence to support a conviction on appeal, we apply the substantial evidence standard of review, viewing the evidence in the light most favorable to the judgment to determine whether a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thompson (2010) 49 Cal.4th 79, 113; People v. Halvorsen (2007) 42 Cal.4th 379, 419.)

As described above, Deputies Newton and Boyce testified about the incident underlying the instant charges. Lizarraga had been at a hearing in a courtroom, where he had become upset and agitated. Newton and Boyce subsequently escorted Lizarraga out of the courthouse to a patrol car to transport him back to jail. Lizarraga was wearing handcuffs connected to a black box, which made the handcuffs more restrictive than they would normally be. The handcuffs were connected to a waist chain, which limited the range of motion of Lizarraga’s arms. Lizarraga was also in leg shackles or leg irons, causing him to shuffle and impeding his ability to run. The incident in question occurred in a county parking lot behind the courthouse, where the patrol car used to transport Lizarraga was parked. Only law enforcement vehicles had access to this parking lot, which was not open to the public; the “main Central Receiving Jail in Kern County” is also located adjacent to this parking lot.

Boyce described the relevant incident as follows: “As we were walking out, Mr. Lizarraga turned around and said, “Fuck this; I’m out of here” or “I’m out of here” to the other deputy I was working with, attempted to headbutt him, then run away. The other deputy was able to hold onto him, take him to the ground. And I helped restrain him there until other deputies arrived to assist.” (Italics added.) Boyce provided additional details. He said the group was walking southwards, with Boyce walking to Lizarraga’s left and Newton walking “right behind” Lizarraga, when Lizarraga turned and attempted, unsuccessfully, to headbutt Newton. As Lizarraga was in the process of turning back around to face south, “Newton grabbed him to stop him from attempting to go anywhere else,” and “forced him to the ground.” Boyce said Lizarraga had “turned a little bit because he was trying to get away at the same time,” but Newton instantly grabbed him and brought him down. The maneuver took about “a second”; Lizarraga had only managed to turn to face west but not all the way back around to face south. Lizarraga was cooperative with the deputies thereafter.

Newton corroborated Boyce’s account. Newton testified, “about 20 feet or so outside the south doors of the [courthouse], [Lizarraga] yelled, and I quote, ‘Fuck this; I’m out of here.’ ” Newton continued, “[Lizarraga] [t]urned towards me, attempted to headbutt me by moving his head fastly towards my face. I moved my face out of the way to avoid the headbutt.” Newton explained, “at that point he attempted to turn away and to get away from me.” (Italics added.) Newton said he was holding the back of Lizarraga’s shirt with his right hand. Newton went on: “He turned away from me and he took a couple of steps. I still had ahold of his shirt – back of his shirt, and he was starting to gain distance between me, so I grabbed ahold of his left arm with my right hand.” Newton clarified that even as he lost his grip on Lizarraga’s shirt, he was able to grab, with the same hand and in the same instant, Lizarraga’s left arm. He thus grabbed Lizarraga’s arm as the latter was in the process of turning away. Newton and Lizarraga then went down to the ground, with Newton landing on top of Lizarraga. Newton “maintained [his] grasp on [Lizarraga],” who was under control at that point. The entire incident “happened really fast”; “t was just one thing after the other.”

Here, regarding the definition of escape, the jury was instructed: “Escape means the unlawful departure of a prisoner from the physical limits of his or her custody. It is not sufficient for the prisoner to be merely outside the particular area where … he or she is permitted to be.” As to attempted escape, the jury was instructed: “To prove that the defendant is guilty of [attempted escape], the People must prove that, one, the defendant took a direct, but ineffective step toward committing the crime of escape from custody; and, two, the defendant intended to commit the crime of escape from custody.” In light of these instructions, the instant record discloses substantial evidence to sustain only a conviction for attempted escape. The testimony of both Boyce and Newton reveals that Lizarraga, who was fully shackled, did not come close to leaving the law enforcement parking lot at the courthouse, remaining within reach of the deputies at all times. Furthermore, for all practical purposes, Newton continuously maintained a physical grasp on Lizarraga, first on the back of his shirt and then on his left arm. In short, Lizarraga did not breach “ ‘ “the limits of his custody.” ’ ” (See [i]People v. Bailey, supra, 54 Cal.4th at pp. 748-749 [“escape” is defined as “the unauthorized or ‘unlawful departure of a prisoner from the limits of his custody’ ”].) The evidence is thus insufficient to sustain a conviction for escape. The evidence is, however, sufficient to sustain a conviction for attempted escape.

DISPOSITION

The judgment is reversed. The matter is remanded to give the People the option to retry Lizarraga for attempted escape.

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GOMES, Acting P.J.

I CONCUR:

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SMITH, J.

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