Opinion
B300310
03-02-2021
THE PEOPLE, Plaintiff and Respondent, v. BILLY JOE BRIGHT, Defendant and Appellant.
Maura F. Thorpe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael Katz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA148434) APPEAL from a judgment of the Superior Court of Los Angeles County. H. Clay Jacke, II, Judge. Affirmed in part and reversed in part with directions. Maura F. Thorpe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Billy Joe Bright of criminal threats, assault with a deadly weapon (a knife), and simple assault. The convictions arose from appellant's interaction on the night of March 13, 2019 with security staff at Martin Luther King Hospital in Los Angeles. Although he did not proceed on a self-defense theory of the case at trial, appellant contends the trial court should have given a self-defense instruction sua sponte and that his trial counsel was ineffective for not requesting one. Appellant also raises two sentencing errors which the People concede have merit. Finally, appellant urges this court to remand the case to the trial court so he can be considered for mental health diversion.
We agree the sentencing errors raised by appellant require us to reverse the conviction for simple assault, stay the sentence for assault with a deadly weapon, and remand for resentencing. We find the issue of eligibility for mental health diversion forfeited. We do not agree the trial court was incorrect in failing to give an instruction on self-defense as the evidence did not support it. Neither do we agree trial counsel was ineffective. We otherwise affirm the judgment.
FACTUAL BACKGROUND
Appellant rested at the close of the People's case-in-chief without presenting any evidence.
On March 13, 2019, appellant rode his bicycle to Martin Luther King Jr. Hospital in Los Angeles to see a doctor to get his medication. Around 11:00 p.m. he entered the hospital through the emergency department lobby with a see-through plastic bag in which he was carrying his property. He stood in line to be screened for weapons and contraband before he could be granted entry, leaving his plastic bag on a chair next to the line. Public safety officer John Idio was screening patients and visitors that night. When appellant approached, Idio asked him to empty his pockets before being screened. Appellant did so and placed a lighter and a small container in front of Idio, who determined it held marijuana. Idio told appellant he could not enter with the marijuana as it was against hospital policy. Appellant became angry and stated he intended to enter the hospital with all his property: "I don't care about your policy. Give me my shit. I'm still coming in." Appellant took the container, walked back, and placed it in his plastic bag on the chair; he returned to the security screening table. He insisted on entering with his belongings.
At that point Idio took the items emptied from appellant's pocket, placed the items in appellant's plastic bag, and took the bag outside where he placed it on the ground outside the entrance to the emergency department lobby. He did so to prevent appellant from entering the hospital with it. Appellant followed Idio outside and began cursing and swearing at Idio for denying him entry with his property. Appellant was quite agitated. He "square[d] up" in what Idio described as a "fighting stance" with clenched fists and one foot forward and one foot back, as if he was "loading up [for] a punch." Believing he was about to be hit, Idio shoved appellant with both hands at chest level, yelling "Get back." The shove pushed appellant backward about three feet. Idio called on his radio for assistance. Public safety staff at the hospital work unarmed - no weapons, no batons, no pepper spray; they carry radios for communication and handcuffs.
Five or six other security guards responded immediately to Idio's call and they came to the area outside the entrance to the emergency department. While another guard spoke to appellant, Idio retreated to "deescalate" the situation by walking about six feet away from appellant to allow other guards to speak to him. Idio described himself at that point as a "cover officer," there to ensure that the other guards were safe and that he was nearby to assist them if appellant pulled a weapon or swung at them.
Six guards surrounded appellant in a semi-circle as he continued to yell and curse. Angry, swearing, and surrounded, appellant bent over, emptied the contents of his plastic bag on the ground, and took out a folding knife with a four-inch blade which he opened and waved from right to left in Idio's direction. At this point Idio was in front of appellant about six to seven feet away. The other guards were about seven feet from appellant. Looking right at Idio who is directly in front of him, appellant said, "I will fucking stab you"; "I'm going to cut you"; "I 'm going to fuck you guys up." He moved toward Idio while making slashing motions.
Fearful, Idio took one step toward appellant to either disarm him or take him down and secure the knife. He and appellant were about one to two feet apart and appellant's knife was pointed at him. As appellant was waving the knife back and forth, it dropped to the ground. (The testimony was contradictory whether appellant "placed" it on the ground or inadvertently lost his grip on it.) Idio stepped on the knife and kicked it back to his partner while the other officers closed the circle. They convinced appellant to sit in a nearby wheelchair.
At some point appellant had removed his shirt which was around his waist when Los Angeles deputy sheriffs arrived in response to a call for help. When they arrived, appellant was out of the wheelchair, shirt around his waist, fists clenched, "yelling at the top of his lungs." The deputies asked appellant why he was being so verbally aggressive. Appellant explained they would not let him into the hospital to see the doctor. He was still yelling and shouting angrily. He said he no longer wanted to see the doctor. Then he told the deputies they had better leave or else he was going to beat them up. The deputies told appellant to pick up his property; they were leaving the scene without appellant when Idio approached and spoke to them. They returned and arrested appellant.
PROCEDURAL BACKGROUND
As it turned out, no one was touched and no one was hurt during the incident on March 13, 2019. Appellant was charged with making criminal threats in violation of Penal Code section 422, subdivision (a) with the additional allegation that he personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1); assault with a deadly weapon in violation of section 245, subdivision (a)(1); and assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(4). The jury found appellant guilty of the first two charges and the personal use allegation. It acquitted appellant of the third charge of assault by means of force likely to produce great bodily injury and convicted him instead of the lesser included offense of simple assault in violation of section 240.
Further undesignated statutory references are to the Penal Code.
The Information also alleged appellant had been convicted of two or more serious felonies within the meaning of section 667, subdivision (a)(1). Appellant waived jury on those allegations and the trial court found them to be true.
Appellant was sentenced to a total of 15 years imprisonment. The trial court imposed the high term of 3 years on the conviction for making criminal threats, plus 1 year on the person use enhancement. It imposed one-third the midterm (one year) consecutive on the conviction for assault with a deadly weapon. It imposed 180 days consecutive on the conviction for simple assault and stayed that sentence pursuant to section 654. The court imposed two 5-year terms for each of the section 667 serious felony priors.
DISCUSSION
I. The Trial Court Correctly Did Not Instruct the Jury Sua Sponte on Self-Defense.
Appellant did not argue self-defense at trial and he did not ask the trial court to so instruct the jury. Although defense counsel at one point stated in passing at the very end of the argument that appellant needed to defend himself, the theory of the defense was that the credible evidence was insufficient to convict him of the charged offenses.
On appeal, appellant now contends the trial court should have instructed the jury sua sponte on self-defense because the evidence at trial was sufficient to support such an instruction. We disagree.
We review de novo a trial court's refusal to give a theory of defense instruction. (People v. Watson (2000) 22 Cal.4th 220, 222-223). De novo review also applies to whether the trial court has a sua sponte duty to give a particular instruction. (People v. Simon (2016)1 Cal.5th 98, 133; People v. Guiuan (1998) 18 Cal.4th 558, 569.)
The trial court's duty to instruct on general principles of law and defenses arises only when there is substantial evidence to support giving such an instruction. (People v. Crew (2003) 31 Cal.4th 822, 835; People v. Nguyen (2015) 61 Cal.4th 1015, 1049.) In the case of self-defense a defendant may not invoke the self-defense doctrine if, through his own wrongful conduct, the defendant has created circumstances under which his adversary's attack was justified. (People v. Rangel (2016) 62 Cal.4th 1192, 1226.)
Here appellant argues the evidence showed that after having been shoved by Idio and surrounded by five security guards, appellant acted in self-defense by picking up the knife and waving it around because he needed to protect himself from further assault. If that were the only evidence in the record, we might be inclined to agree. Appellant, however, overlooks one very important undisputed fact: after Idio took appellant's property outside with a screaming and yelling appellant in tow, appellant faced Idio and "squared up," assuming a fighting stance as if he were preparing to punch Idio. Idio testified he yelled at appellant to "get back" and shoved him to forestall being struck. We conclude appellant was the initial aggressor in this altercation, which mushroomed into the waving of the knife. Appellant's initial aggression precludes him from relying on the doctrine of self-defense, a likely reason his trial counsel did not proffer it as the theory of defense. We find the trial court committed no error in not giving a self-defense instruction sua sponte. Substantial evidence did not support it. II. The Sentence on Count 2 Must be Stayed under Section 654 as the Convictions for Making Criminal Threats and Assault with a Deadly Weapon Arose from a Continuous Course of Conduct.
Because there was no substantial evidence to support a self-defense instruction, counsel was not ineffective when he did not request one. (People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36 [counsel has no duty to interpose meritless objections].)
Appellant was convicted of making criminal threats in violation of section 422 (count 1) and assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 2). He contends the two convictions arose from a continuous course of conduct and therefore he could not be sentenced on both counts. The People agree the consecutive sentence on count 2 must be stayed under section 654. So do we.
Whether section 654 applies is a question of fact for the trial court, which is vested with broad latitude to make its determination. We do not reverse a trial court's findings as to the application of section 654 if there is substantial evidence to support the findings. However, when the facts are undisputed, the application of section 654 is a question of law. (People v. Harrison (1989) 48 Cal.3d 321, 335.) A section 654 claim, resulting in an unauthorized sentence, is not waived by failure to object at sentencing. (People v. Hester (2000) 22 Cal.4th 290, 295.)
Section 654 prohibits multiple punishment for offenses arising from the same act, or from a series of acts based on the same objective that amounts to an indivisible course of conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507.) The purpose of section 654 is to ensure that a defendant's punishment will be commensurate with his culpability. It is the defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. (People v Carter (2019) 34 Cal.App.5th 831, 841.) If the defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005; People v. Corpening (2016) 2 Cal.5th 307, 311.)
Here appellant found and opened his pocket knife, swung it at Idio, stepped toward him, and threatened to stab Idio and everyone around him. The threats were simultaneous with the assault and reflected a single intent - to vent his anger in an unlawful way at those responsible for denying him entry into the hospital with his belongings. The sentence on count 2 for assault with a deadly weapon must be stayed under section 654. III. The Conviction for Simple Assault Must be Reversed As It Is a Lesser Included Offense of Assault With a Deadly Weapon.
Appellant contends his conviction for simple assault (count 3) must be reversed because it is a lesser-included offense of assault with a deadly weapon (count 2). The People concede the point and we agree.
The jury convicted appellant of simple assault in violation of section 240 instead of the offense charged in count 3, assault with force likely to cause great bodily injury.
At sentencing, the trial court found that section 654 applied to the simple assault conviction and stayed the 180-day sentence it imposed on that count. By doing so, the trial court implicitly found the two convictions arose from the same continuous course of conduct. Simple assault is a lesser-included offense of assault with a deadly weapon. (In re Brandon T. (2011) 191 Cal.App.4th 1491, 1498.) When a defendant is found guilty of both a greater and a necessarily lesser-included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, the conviction on the greater offense is controlling, and the conviction of the lesser offense must be reversed. (People v. Sanders (2012) 55 Cal.4th 731, 736; People v. Medina (2007) 41 Cal.4th 685, 701 [reversing the lesser-included conviction rather than staying the sentence under section 654 is required].) We therefore reverse the conviction on count 3. IV. Appellant Has Forfeited His Claim That the Trial Court Should Have Considered Whether He Is Eligible for Mental Health Diversion Under Section 1001 .36.
Section 1001.26 authorizes a diversion program for defendants with qualifying mental disorders. Appellant did not ask the trial court to consider his eligibility for mental health diversion. He now asks us, in our discretion, to remand the matter to the trial court to consider whether he meets the criteria under the statute.
We decline to do so. The statute was in effect when appellant was arrested, charged, convicted, and sentenced. He has forfeited this claim by not raising it in the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 375-376 [failure to ask the sentencing court to dismiss a strike constitutes forfeiture of the issue on appeal].)
DISPOSITION
Count 3 is reversed. The sentence on count 2 must be stayed. The matter is remanded to the trial court for resentencing. The judgment of conviction is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
GRIMES, Acting P. J.
WILEY, J.