Opinion
B227590
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. DAVID HAMILTON, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA339752)
APPEAL from a judgment of the Superior Court of Los Angeles County. Judith L. Champagne, Judge. Reversed in part and affirmed in part.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
David Hamilton appeals from the judgment entered upon his convictions by jury of mayhem (Pen. Code, § 203, count 1) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2). As to both counts, the jury found to be true the special allegation that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court found that appellant had suffered three prior felony strikes within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), had suffered three prior serious felony convictions within the meaning of section 667, subdivision (a)(1) and had served three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to an aggregate state prison term of 46 years to life. Appellant contends that (1) he was denied due process, the right to present a defense, and effective assistance of counsel when the trial court abused its discretion and denied his two pretrial motions for advisory counsel, (2) there is insufficient evidence to support his convictions, (3) there is insufficient evidence to support one of the section 667, subdivision (a) prior convictions and one of the prior felony strike convictions, (4) the section 667.5 subdivision (b) enhancements are in part unlawful, and (5) the section 12022.7 great bodily injury enhancement is unlawful in connection with count 1.
All further statutory references are to the Penal Code unless otherwise indicated.
We reverse in part and affirm in part.
FACTUAL BACKGROUND
On the evening of April 26, 2008, appellant visited Debra Tinsley (Tinsley), with whom he had been romantically involved in the past, at her apartment in Los Angeles. Tinsley's old, male friend, Asa Belton (Belton), who had been staying with her for more than a month, was there. Appellant and Belton did not get along. Appellant had even threatened Belton on a previous occasion.
Appellant and Tinsley got into an argument about Belton being at Tinsley's apartment. Belton said nothing, but remained seated in a chair. Appellant threatened Tinsley, and Belton told him that Belton would not allow him to hurt her. Appellant then left.
Fifteen or 20 minutes later, appellant returned to the apartment and went into Tinsley's bedroom, where she and Belton were sitting. Appellant and Tinsley again had a heated argument about Belton living in Tinsley's apartment. During the argument, appellant hit Tinsley and turned and punched Belton on the side of the head while Belton was still seated. Belton jumped up and bear-hugged appellant to protect himself from being hit again. During the fight, appellant bit Belton's forearm and ear, severing the ear, which fell to the floor.
Belton became incensed when he saw his ear on the floor and only then punched appellant several times with his fist as the combatants exchanged punches. Belton was eventually able to hold appellant down until the police and paramedics arrived.
Officer Victor Mencias responded to the scene and saw appellant lying on the floor, conscious and mumbling. Both Belton and appellant were treated by paramedics at the scene and then at the hospital. Belton ultimately lost his ear, but after several surgeries, doctors were able to reconstruct a small portion of his outer ear.
Officer Elias Garcia interviewed Tinsley and Belton at the hospital. They gave substantially the same description of the incident as that to which they subsequently testified at trial. Tinsley added, however, that appellant had once bitten her when he had gotten angry.
Appellant presented evidence that Belton and Tinsley were convicted felons and had been smoking crack cocaine on the day of the incident. He also presented evidence that Belton hit him with a metal tray and severely beat him, causing him to suffer vision problems.
Appellant called Tinsley as a defense witness. She testified that appellant entered her room, lied on the bed with her and got up and "sucker punched" Belton, without provocation. But appellant did not hit her before he hit Belton.
DISCUSSION
I. Requests for advisory counsel
A. Background
From the time of his arraignment, on October 28, 2008, until after the People had presented their case-in-chief, appellant represented himself pursuant to Faretta. When he chose self-representation, the trial court admonished him that, "You don't get any special treatment." Seven weeks later, the trial court appointed Michael Jimerson (Jimerson) standby counsel.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
On October 23, 2009, appellant filed a "Motion for Substitute of Counsel Attorney," in which he sought to "substitute . . . Jimerson for [himself] as attorney of record for an action or special proceedings being examination by expert witness psychiatrists, psychotherapists, et. seq. and during any and all insanity phase proceedings at trial." Appellant sought to "retain the absolute right to decide certain issues affecting his fundamental rights and/or competent representation relevant to his insanity plea."
The trial court denied the motion, explaining that representation is "not a halfway. You can't split the baby in my court. And you either want it or you don't want it. So you've indicated you want to go pro. per. You were told at the outset by I presume Judge Ryan all the potential pitfalls of that. You acknowledged it and said notwithstanding those pitfalls you wanted to do it. So that's where you are at. If you tell me you don't want to do it I'll consider that request."
On February 2, 2010, appellant filed a "Motion for Co-counsel Status," in which he said that he was a layman, lacked the legal skills to make timely objections, cross-examine and deal with other issues related to insanity, had been unable to speak with standby counsel, and making him cocounsel would promote justice. He said he would "be responsible for any of [his] actions but . . . the co-counsel will maintain the decisions that are made regarding tactical principles." The trial court denied the motion without comment.
On April 22, 2010, just days before trial, appellant relinquished his insanity defense, instead asserting the defenses of unconsciousness and self-defense.
Trial began with jury selection on April 26, 2010. After appellant had begun presenting his case, he gave up his pro. per. status, saying that he realized that he was not qualified and that he might be wasting his and the court's time. The trial court warned appellant that counsel would not be able to start the case over and would have to "walk into the mess [appellant had] created." It appointed Jimerson to represent appellant, stating: "I am not sure whether or not it would be more appropriate to declare a mistrial at this point." Juror No. 7 had written a note to the court saying that the trial was a "sham and shame" and the juror "cannot find this defendant guilty because of what they have observed."
B. Contention
Appellant contends that he was denied due process, the right to present a defense and effective assistance of counsel by virtue of the trial court's abuse of discretion in denying his two requests for advisory/cocounsel. He argues that he was "effectively denied his day in court because the court . . . turned a deaf ear to [his] circumstances, while making much of the fact of how foolish appellant was for representing himself. The court did little or nothing to ensure that he received due process and effective assistance of counsel through the option of appointing stand-by counsel to assist him . . . prior to trial."
The People contend that appellant forfeited his constitutional claims because he failed to raise them in the trial court.
We conclude that appellant forfeited his constitutional claims but not his claim that the trial court abused its discretion in denying his requests for assistance of cocounsel. On the merits, we conclude that while there was ample justification for the trial court's ruling, if there was any error, it was harmless.
C. Forfeiture
Appellant forfeited the constitutional claims he now raises by failing to assert them in the trial court. A prerequisite to preserving an issue for appeal is an objection in the trial court, on the same grounds as urged on appeal. (People v. Derello (1989) 211 Cal.App.3d 414, 428.) "Except for a handful of express constitutional rights that are deemed particularly 'fundamental' and personal, defense counsel is fully authorized to waive rights of constitutional dimension . . . by not raising an objection or making a particular motion." (People v. Williams (1998) 61 Cal.App.4th 649, 656.)
D. Right of self-representing defendant to assistance of counsel
1. Right to self-representation
A criminal defendant is entitled under the federal and state Constitutions to the assistance of counsel at all critical stages of the proceedings. (U.S. Const., Sixth Amend.; Cal. Const., art. I, § 15; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.) A federal constitutional right of a defendant to self-representation is implied in the Sixth Amendment. (Faretta, supra, 422 U.S. at p. 819.) "[A] defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.'" (Id. at p. 834.)
Here, from the time of appellant's arraignment, until after he began presenting his case at trial, he availed himself of his right to self-representation, though he was cautioned about its pitfalls and warned that he would receive no special treatment because he was not a lawyer.
2. A self-representing defendant's right to assistance of counsel
In Faretta, the Supreme Court stated that when a defendant elects self-representation, "a State may—even over objection by the accused—appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." (Faretta, supra, 422 U.S. at p. 834, fn. 46; see also People v. Carson (2005) 35 Cal.4th 1, 8.) The Supreme Court did not articulate, however, the precise functions standby counsel could or must perform, and, in the context in which the statement was made, a discussion of the obligation of a self-represented accused not to undermine the dignity of the trial court by engaging in conduct that would preclude the accused from continuing self-representation, suggested a very narrow use of such counsel.
"[T]he role and duties of advisory and/or standby counsel are not clearly established or defined." (Brookner v. Superior Court (1998) 64 Cal.App.4th 1390, 1395 (Brookner).) Various terms have been "loosely used," with no consistent meaning, to refer to multiple situations in which an accused and counsel are involved in the defense, such as "'advisory counsel,'" "'standby counsel,'" "'cocounsel'" and "'hybrid representation.'" (People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14; see also Brookner, supra, at p. 1393.) Some courts have attempted to define these terms, but there is no uniformity in their use; "'advisory counsel'" is counsel who is present in the courtroom at the defendant's side, does not speak for the defendant or participate in the conduct of the trial, but only gives legal advice to the defendant (Chaleff v. Superior Court (1977) 69 Cal.App.3d 721, 731, fn. 6 [conc. opn.]; People v. Blair (2005) 36 Cal.4th 686, 725 (Blair)); "'standby counsel'" is counsel who is present in court to follow the evidence but does not give legal advice. Standby counsel is appointed for the benefit of the court to step in and represent the defendant in the event it becomes necessary to revoke the defendant's pro se status or to remove the defendant from the court (Chaleff v. Superior Court, supra, at p. 731, fn. 7; Blair, supra, at p. 725); and, "cocounsel" is where the defendant and counsel share representation in some respect (People v. Moore (2011) 51 Cal.4th 1104, 1119, 1120, fn. 7 (Moore).)
But a defendant who voluntarily elects self-representation has no constitutional right to the assistance of counsel in any form of hybrid representation. (People v. Bradford (1997) 15 Cal.4th 1229, 1368; People v. Stewart (2004) 33 Cal.4th 425, 518; People v. Bloom (1989) 48 Cal.3d 1194, 1218.) However, the trial court has inherent discretion to appoint cocounsel or advisory counsel to an indigent defendant who has chosen to represent himself, when the interests of justice support such an arrangement. (Moore, supra, 51 Cal.4th at p. 1120; see People v. Crandell (1988) 46 Cal.3d 833, 861-862 (Crandell), disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364; People v. Bigelow (1984) 37 Cal.3d 731, 742-743 (Bigelow).)
We share the concerns of several appellate courts with appointment of counsel to assist a pro se defendant. As stated in Brookner: "It seems to us that a defendant either has an attorney or he is his own attorney—period. There should be no middle ground. A defendant who represents himself does so voluntarily, knowingly, and intelligently; and only after being duly warned of the consequences of his decision. [Citation.] He is routinely told that no special treatment will be provided simply because he has competently elected to represent himself although he is not an attorney—but in the same breath the court may, and is told by higher courts that it should, provide just such a special treatment by appointing an advisory or standby counsel to assist the defendant." (Brookner, supra, 64 Cal.App.4th at p. 1394; see also Chaleff v. Superior Court, supra, 69 Cal.App.3d at p. 732 (conc. opn.) ["A defendant appearing in propria persona has elected to represent himself. He is his own counsel. He should not be allowed to have it both ways"]; see also People v. Garcia (2000) 78 Cal.App.4th 1422, 1431 ["In reality, the concept of advisory counsel for the Faretta defendant is disingenuous. . . . [¶] It would seem that if a defendant who waives the assistance of counsel is competent to represent himself, he should do so, by himself; if he is not able to defend himself without the assistance of advisory counsel, then he is not competent to represent himself"].)
In the exercise of the trial court's discretion, it should not permit a litigant to both have counsel and participate in the conduct of the case unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered or delayed. (People v. Davis (1984) 161 Cal.App.3d 796, 802.) In Bigelow, the California Supreme Court held that the trial court has discretion to appoint advisory counsel. (Bigelow, supra, 37 Cal.3d at p. 743.) It concluded that under the circumstances of that case, it would have been an abuse of discretion to refuse the request to do so because the defendant had limited education, was a foreign national and was unfamiliar with California law, and he was "not competent to defend a capital case." (Id. at pp. 743-744, italics added.)
The Supreme Court in Bigelow emphasized that a defendant's request for assistance of counsel must be evaluated differently in a capital case, which is different in kind of punishment and raises more complex issues. (Bigelow, supra, 37 Cal.3d 743, fn. 7.)
We will not disturb the trial court's ruling absent a clear abuse of discretion. (Crandell, supra, 46 Cal.3d 863; People v. Clark (1992) 3 Cal.4th 41, 111 [As we previously stated regarding a challenge to the denial of hybrid representation, "as with other matters requiring the exercise of discretion, 'as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside"].)
3. Abuse of discretion
As above stated, the trial court had discretion to provide appellant with some form of assistance by an attorney. "'"[A]s long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside . . . . [Citations.]"'" (Moore, supra, 51 Cal.4th at p. 1120.) Here, the trial court's denial of appellant's request for the assistance of counsel was justified. Appellant claimed that he needed cocounsel because he lacked the legal skills to make timely objections, cross-examine and deal with other issues related to insanity. However, as stated in Moore, "[a]ll the reasons defendant proffered for why he needed the assistance of cocounsel—and not merely advisory counsel—were circumstances related to his choice to represent himself, and defendant was warned of the possible difficulties he would face before he made that choice." (Ibid.) Appellant's stated reasons did not constitute a substantial showing that the cause of justice would be served by appointing advisory/cocounsel for appellant. (People v. Davis, supra, 161 Cal.App.3d at p. 802.)
4. Harmless error
Even if the trial court erred in denying appellant's request for cocounsel, the denial was harmless in that it was not reasonably probable that had the motion been granted a more beneficial result for appellant would have followed. (Crandell, supra, 46 Cal.3d at pp. 864-865 [No federal constitutional right being asserted, the consequences of the error are properly assessed by employing the harmless error standard in People v. Watson (1956) 46 Cal.2d 818, 836].)
First, the evidence against appellant was overwhelming. It was undisputed that he initiated an unprovoked physical attack on Belton and bit Belton's ear off when Belton put him in a bear hug to avoid further attack. As discussed in part IIA4, post, there was not a scintilla of evidence that appellant was acting in self-defense.
Second, appellant's initial request for cocounsel appears to have been exclusively for the purpose of handling matters pertaining to appellant's sanity, as he had asserted a not guilty by reason of insanity defense. The second motion similarly emphasized that it was primarily seeking counsel for the same reasons, though that request was worded somewhat more broadly. To the extent that the motions sought counsel only in respect to the sanity issue, the request became moot when appellant withdrew his insanity defense just prior to trial, realizing that he was actually asserting an unconsciousness defense.
Finally, after the prosecution's presentation of its case, appellant was allowed to terminate his self-representation and be represented by Jimerson, standby counsel, who had been present for much of the case. Jimerson had the opportunity to call to the stand and question Belton and Tinsley, among others. Thus, appellant had the benefit of counsel for questioning of the victim and of the only eyewitness to the incident.
II. Sufficiency of Evidence
A. To support convictions
1. Contention
Appellant contends that there is insufficient evidence to sustain his convictions. He argues that the evidence is insufficient to prove beyond a reasonable doubt that he did not use force in self-defense. This contention lacks merit.
2. Standard of review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) All conflicts in the evidence and questions of credibility are resolved in favor of the verdict, drawing every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless '"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.) This standard applies whether direct or circumstantial evidence is involved. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
3. The principles of self-defense
"Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." (§ 203.)
The crime of assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another. (People v. Golde (2008) 163 Cal.App.4th 101, 108.)
Self-defense justifies acts that are otherwise criminal when the defendant has an "'honest and reasonable belief'" that he or she is in "imminent" danger of "bodily injury." (People v. Minifie (1996) 13 Cal.4th 1055, 1064; see also §§ 197, subds. 1 & 3, 693.) Imminent danger means that "'the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.'" (People v. Aris (1989) 215 Cal.App.3d 1178, 1187, disapproved on another point in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [approving an instruction to the effect of the quoted language].)
The force exerted by the defendant must be reasonable under the circumstances. (People v. Minifie, supra, 13 Cal.4th at p. 1065.) Self-defense ceases to operate in favor of a person attacked once the attacker is rendered incapable of inflicting further injuries. (Crandell, supra, 46 Cal.3d at p. 873, disapproved of on other grounds in People v. Crayton, supra, 28 Cal.4th at pp. 364-365.)
A defendant cannot initiate a fight and then claim self-defense, unless the defendant clearly indicates an intent to disengage. (See § 197, subd. 3; see also People v. Bloyd (1987) 43 Cal.3d 333, 354 [discussing with approval a jury instruction stating that the right of self-defense is not immediately available to an assailant unless the assailant endeavors to decline further combat]; see also People v. Hardin (2000) 85 Cal.App.4th 625, 630 ["'It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified'"]; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
4. Evidence negating self-defense
In a case where self-defense is asserted, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not act in self-defense. (People v. Martinez (2003) 31 Cal.4th 673, 707 [prosecutor has burden on issue of imperfect self defense].) Here, there is sufficient evidence for the jury to have found beyond a reasonable doubt that appellant did not act in self-defense. The undisputed evidence was that appellant was arguing with Tinsley. He struck her and then "sucker punched" Belton, who was sitting in a chair saying nothing, in the side of the head. Fearing a further attack, Belton got up and put appellant into a bear hug, at which point appellant bit Belton's ear off. Irate at the sight of his ear on the floor, Belton exchanged punches with appellant, severely beating him.
These facts indicate that appellant initiated an unprovoked attack on Belton. Having done so, he cannot resort to self-defense, unless he clearly evidenced an intent to disengage. (People v. Bloyd, supra, 43 Cal.3d at p. 354.) There is no evidence that appellant indicated clearly, or otherwise, that he wanted to disengage in the fight. There is no evidence that Belton was the aggressor, initiated the fight or used unreasonable force given the nature and ferocity of appellant's attack and the totality of the circumstances. Further, the undisputed evidence is that appellant used excessive force in response to Belton's bear hug, by biting Belton's ear off.
Appellant argues that the only evidence that he did not act in self-defense is the testimony of Belton and Tinsley, both of whom were crack cocaine addicts, convicted felons, had been smoking crack cocaine all day before the fight, and had been previously romantically involved. He claims that "[u]nder the above circumstances, the testimony of Belton and Tinsley is not to be believed and is so improbable as not to amount to substantial evidence."
Belton's and Tinsley's testimony was collectively and individually substantial evidence sufficient to support the finding that appellant did not act in self-defense. The fact that there were serious questions regarding their credibility was for the jury to assess, not us. (People v. Thompson 49 Cal.4th 79, 125 ["'[I]t is not a proper appellate function to reassess the credibility of the witnesses'"].) Moreover, contrary to appellant's assertion, Belton and Tinsley's testimony is not so improbable as to not amount to substantial evidence. The standard for rejecting a witness's statements on this ground requires either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. (People v. Barnes (1986) 42 Cal.3d 284, 306.) We find nothing in their testimony that was physically impossible or false on its face.
B. To support one serious felony and one felony-strike enhancement
1. Background
The information charged appellant with mayhem and assault and alleged that he had suffered three prior serious felonies and three prior felony strikes based upon the following prior convictions: 1988 juvenile, voluntary manslaughter conviction in case No. A525153 (1988 conviction), 1989 assault with a deadly weapon or by force likely to produce great bodily injury conviction in case No. A915736 (1989 conviction), and 1991 assault with a deadly weapon or by force likely to produce great bodily injury conviction in case No. BA021229 (1991 conviction).
Appellant was convicted of mayhem and assault. The great bodily injury enhancement allegation was found to be true as to both counts. At a bifurcated trial on the priors, a fingerprint expert testified, and certified copies of the 969, subdivision (b) packets for the prior convictions were received in evidence without objection. Concerning the 1991 conviction, the abstract of judgment shows "ASLT/GBI/W/DLY/WPN." A fingerprint card that follows the abstract of judgment contains a clerical notation, "BA021229, Ct. 2 Aslt w/Deadly Wpn (P245A)." A signature was placed near the notation.
The trial court sentenced appellant to 25 years to life on count 1, as a three-strike offender, plus three years for the great bodily injury enhancement, 15 years for the three prior serious felony enhancements and three years for the three prior prison term enhancements. A 25-years-to-life sentence imposed on count 2 was stayed pursuant to section 654.
2. Contentions
Appellant contends that there is insufficient evidence to sustain the prior serious felony and prior strike findings related to his alleged 1991 assault conviction. He argues that an assault by means likely to produce great bodily injury and an assault with a deadly weapon are not violent felonies under section 667.5, subdivision (c), and only an assault with a deadly weapon is a serious felony under section 1192.7, subdivision (c). The record before the trial court, he continues, is ambiguous as to whether the 1991 conviction for assault was with a deadly weapon or by means likely to produce great bodily injury, and thus the trial court was required to presume the least serious form of the offense.
The People contend that appellant forfeited this claim by failing to object in the trial court to the "authenticity, accuracy, or sufficiency of the fingerprint card . . . nor did he present any evidence to disprove the notation."
3. Forfeiture
Appellant did not, and cannot, forfeit his claim that the evidence was insufficient to support the true finding regarding the 1991 conviction. Challenges to the sufficiency of the evidence cannot be forfeited except by failure to timely notice an appeal. (People v. Rodriguez (1998) 17 Cal.4th 253, 262; People v. Galindo (2006) 142 Cal.App.4th 531, 538.)
However, generally, objections to evidence on the specific grounds asserted must be made, or the objection is forfeited. (People v. Derello, supra, 211 Cal.App.3d at p. 428.) As a result, appellant's failure to object to the admission of the 969b packets waived any objection to their admission. Even if improperly admitted, once in evidence, they can be considered for all purposes and may contain evidence to support a fact finder's verdict or finding.
4. Standard of review
The same standard of review set forth in part IIA2, ante, applies when determining whether the evidence is sufficient to sustain a jury finding on an enhancement. (See People v. Duran (2002) 97 Cal.App.4th 1448, 1456-1457; People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)
5. Evidence that the 1991 conviction was a serious felony
In determining whether the 1991 conviction is a serious and/or violent felony, we apply the versions of section 667.5, subdivision (c) and of section 1192.7, subdivision (c) in effect at the time of sentencing in 2010, rather than the 1990 versions in effect when the crime that was the basis of the prior conviction occurred. "[I]n varying circumstances, courts have repeatedly upheld the use of a prior conviction occurring prior to the adoption of an enhancing provision such as Penal Code section 667, subdivisions (b)-(i)." (People v. Hatcher 1995) 33 Cal.App.4th 1526, 1528.) "No constitutional bar prevents the application of section 667 to the later offense solely because the prior conviction which serves as a basis for enhancement was committed before the initiative passed. In the context of habitual criminal statutes, 'increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense.'" (People v. Jackson (1985) 37 Cal.3d 826, 833, disapproved on other grounds in People v. Guerrero (1988) 44 Cal.3d 343.)
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Section 667, subdivision (a)(1) provides for a five-year enhancement for a person convicted of a serious felony, as defined in section 1192.7, subdivision (c), and who had previously been convicted of a serious felony. The three strikes law provides enhanced punishments for a person convicted of any felony who had previously been convicted of a serious or violent felony, as defined in sections 1192.7, subdivision (c) and 667, subdivision (c), respectively.
Section 667.5, subdivision (c), which lists the violent felonies, does not specifically include any type of assault. While any felony in which the defendant personally inflicts great bodily injury on anyone other than an accomplice is a violent felony (§ 667.5, subd. (c)(8)), there is nothing in the record to suggest that appellant's 1991 assault conviction involved the infliction of great bodily injury. Thus, that conviction is not a violent felony.
Section 1192.7, which lists the serious felonies, includes as a serious felony any felony in which the defendant personally inflicted great bodily injury on a person other than an accomplice (§ 1192, subd. (c)(8)). For the same reason discussed in connection with the violent felonies, the 1991 conviction is not a serious felony under subdivision (c)(8). However, section 1192.7, subdivision (c) also provides that assault with a deadly weapon is a serious felony (§ 1192.7, subd. (c)(31)). Assault by means likely to produce great bodily harm is not listed as a serious felony. Thus, for the 1991 assault conviction to support the serious felony and three strike enhancements, it must be a conviction for assault with a deadly weapon.
Appellant argues that there is insufficient evidence to establish beyond a reasonable doubt that the 1991 conviction was for assault with a deadly weapon, rather than by means likely to produce great bodily injury. We conclude otherwise.
The People must prove each element of a sentence enhancement beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) "[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume that the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden." (Ibid.)
Here, there is sufficient evidence that the assault was with a deadly weapon. The abstract of judgment in the 969b packet shows that the 1991 conviction was based upon appellant's guilty plea to the charge of violating section 245, subdivision (a)(1). The abstract of judgment, in the section delineating the crime, states "ASLT/GBI/W/DLY/WPN," paralleling the statutory language. This designation clearly fails to specify whether the conviction is based upon assault with a deadly weapon or assault by means likely to produce great bodily injury.
However, the fingerprint card in connection with that conviction, admitted in evidence without objection, shows a clerical notation that "BA021229, Ct. 2 Aslt w/Deadly Wpn (P245A)," and bears a signature next to it. This notation was sufficient for the trial court to conclude beyond a reasonable doubt that the conviction was for assault with a deadly weapon and hence was a serious felony for purposes of the serious felony enhancement and the three strikes law. "'[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction. . . .'" (People v. Delgado, supra, 43 Cal.4th at p. 1066.)
III. Lawfulness of two of the prior prison term enhancements
A. Background
Two of the serious felony enhancements and prior prison term enhancements were based upon appellant's 1989 and 1991 convictions.
B. Contention
Appellant contends that two of the prior prison term enhancements must be reversed because they were improperly imposed. He argues that the same prior conviction cannot support both a prior prison term enhancement under section 667.5, subdivision (b) and a prior serious felony enhancement under section 667, subdivision (a)(1). The People agree with appellant as do we.
C. Rationale
The 1989 and 1991 prior serious felony convictions were the bases of two of the prior prison term enhancements in section 667.5,subdivision (b) and two of the serious felony enhancements in section 667, subdivision (a)(1). Only the greater of the two enhancements can be imposed, the lesser being stricken. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145.) Consequently, the one-year prior prison term enhancements for the 1989 and 1991 convictions must be stricken.
IV. Lawfulness of great bodily injury enhancement on count 1
A. Background
Appellant was sentenced for his conviction of mayhem in count 1 to 25 years to life, enhanced by the three-year, great bodily injury enhancement.
B. Contention
Appellant contends that the great bodily injury enhancement was erroneously imposed on his sentence for mayhem. He argues that because great bodily injury is an element of mayhem, the great bodily injury enhancement cannot also be imposed. The People agree with appellant, so do we.
C. Guiding principles.
"[G]reat bodily injury as defined in [] section 12022.7 is an element of mayhem and the enhancement for great bodily injury is inapplicable." (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559-1560; see also People v. Hill (1994) 23 Cal.App.4th 1566, 1575; People v. Keenan (1991) 227 Cal.App.3d 26, 36, fn. 7.)
DISPOSITION
The two, one-year prior prison term enhancements related to appellant's 1989 and 1991 convictions and the three-year great bodily injury enhancement as to count 1 are stricken. The judgment is otherwise affirmed. On remand, the trial court is directed to modify the abstract of judgment accordingly.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J.
We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.