Opinion
E072354
07-14-2020
THE PEOPLE, Plaintiff and Respondent, v. IAN PETER IVERSEN, Defendant and Appellant.
George L. Schraer for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Seth M. Friedman, Michael Pulos, and Christopher P. Beesley Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1700594) OPINION APPEAL from the Superior Court of Riverside County. Alfonso Fernandez, Judge. (Retired judge of the Santa Clara County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. George L. Schraer for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Seth M. Friedman, Michael Pulos, and Christopher P. Beesley Deputy Attorneys General, for Plaintiff and Respondent.
There was substantial — albeit disputed — evidence of the following facts.
Defendant's brother called the police to report a loud argument between defendant and his girlfriend. Two officers responded. Defendant's brother told them that the girlfriend said she wanted to leave, but defendant was "standing in front of the door, not letting her leave."
The officers tried to separate defendant and his girlfriend, but he disobeyed their commands. He approached one officer with his fists clenched. The officers told him he was being detained and tried to handcuff him. He said, "Do not detain me" and resisted physically. Among other things, he kicked one officer in the knee, causing a hairline fracture of the officer's tibia.
In a jury trial, defendant was found guilty of:
Count 1: Resisting an officer (§ 69, subd. (a)), with a great bodily injury enhancement (§ 12022.7, subd. (a)).
This and all further statutory citations are to the Penal Code.
Count 2: Battery on a peace officer with injury (§ 243, subd. (c)(2)), with a great bodily injury enhancement.
Count 3: Nonforcible false imprisonment. (§ 236.)
Defendant was sentenced to a total of four years four months in prison.
Defendant contends:
1. He could not be convicted of the charged crime of resisting an officer, with a great bodily injury enhancement, and could be convicted only of the uncharged crime of battery with serious bodily injury (§ 243, subd. (d)), because the former is a general statute while the latter is a special statute.
2. The trial court erroneously failed to consider reducing the punishment for the great bodily injury enhancements.
We find no error. Hence, we will affirm.
I
CONVICTION UNDER A GENERAL STATUTE
RATHER THAN A SPECIAL STATUTE
Defendant contends that he could not be convicted of resisting an officer, with a great bodily injury enhancement; he could only be convicted of battery with serious bodily injury (§ 243, subd. (d)), because the former charge is general while the latter is special. Thus, even though he was also convicted of battery with injury on a peace officer, he should have been sentenced as if he had been convicted on a single uncharged count of battery with serious bodily injury. That would also mean that the great bodily injury enhancements would go away. (People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550.)
A. Forfeiture.
Preliminarily, the People argue that defendant forfeited this contention by failing to raise it in the trial court. It has been held, however, that such an issue presents "a pure question of law based on undisputed facts," and therefore can be considered for the first time on appeal. (People v. Henry (2018) 28 Cal.App.5th 786, 791, fn. 3.)
B. Merits.
This contention is based on the "Williamson rule," named after In re Williamson (1954) 43 Cal.2d 651.
"Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.] 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and "requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision . . . ." [Citation.]' [Citation.]
"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (People v. Murphy (2011) 52 Cal.4th 81, 86.)
As defendant concedes, the first test — i.e., that the assertedly general statute is a lesser included offense of the assertedly special statute — is not satisfied here.
Resisting an officer has elements that battery with serious bodily injury does not. Most obviously, the victim must be an executive officer performing his or her duties. Also, the defendant must know that the victim is an executive officer performing his or her duties. Most significantly, the defendant must resist the officer. (CALCRIM No. 2652; see also § 69, subd. (a); People v. Smith (2013) 57 Cal.4th 232, 241.)
Resisting an officer can be committed "in two separate ways. '"The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty."' [Citation.]" (People v. Brown (2016) 245 Cal.App.4th 140, 149.) In this case, the jury was instructed solely on the second theory, so we focus on that theory.
Conversely, battery with serious bodily injury has elements that resisting an officer does not. At the risk of being tautological, battery with serious bodily injury requires that the victim suffer a serious bodily injury; resisting an officer does not. In addition, battery requires "force or violence" (§ 242), defined as a harmful of offensive touching of the victim. (People v. Shockley (2013) 58 Cal.4th 400, 404.) Resisting an officer also requires force or violence (§ 69, subd. (a)); however, the force or violence need not be used on or directed toward the officer. (People v. Bernal (2013) 222 Cal.App.4th 512, 518-520.)
We note that if resisting an officer is viewed as a single offense that can be committed in two ways (see fn. 2), that is an additional reason why battery with serious bodily injury is not a lesser included offense.
Defendant does argue, however, that the second Williamson test is satisfied — i.e., that a violation of the assertedly special statute will necessarily or commonly result in a violation of the assertedly general statute. We disagree. Battery with serious bodily injury applies regardless of who the victim is. It is safe to say that the majority of victims of batteries with serious bodily injury are not executive officers. And even in the minority of cases when they are, the perpetrator is not necessarily or commonly resisting the executive officer. (See, e.g., In re Michael P. (1996) 50 Cal.App.4th 1525, 1527-1528 [juvenile being transported attacked officer who was driving]; People v. Glover (1967) 257 Cal.App.2d 502, 504-505 [inmate attacked officer who brought him a meal].)
Defendant lumps his conviction for resisting an officer together with the great bodily injury enhancement to that conviction and treats this as a unitary general offense. However, in deciding whether one offense is a lesser included of another, enhancements must be ignored. (People v. Sloan (2007) 42 Cal.4th 110, 114.) We see no reason to take a different approach under the Williamson rule.
As authority for such "lumping," defendant cites People v. Nguyen (1997) 54 Cal.App.4th 705. There, the defendant argued that petty theft with a prior (§ 666) was a special statue that precluded the application of the three strikes law (§ 667, subds. (b)-(i)). (People v. Nguyen, supra, at p. 712.) The court acknowledged that "'[t]he "special over the general" rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes. . . .' [Citation.]" (Id. at pp. 712-713.) It held, however, the rule did not apply in the case before it, because the elements of the three strikes law "do not correspond" to the elements of petty theft with a prior, and because petty theft with a prior "also will not 'necessarily or commonly result in a violation of'" the three strikes law. (Id. at p. 713.) Thus, Nguyen compared a single substantive offense to a single "enhancement." It did not involve lumping a substantive offense together with an enhancement and treating the combination as a single general statute.
Actually, the three strikes law is an alternative sentencing scheme, not an enhancement. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527.)
Defendant also lumps battery with serious bodily injury (with which he was not charged) together with battery with injury on a peace officer (with which he was) and treats this as the special statute. He then argues that a violation of the combined special statute will also commonly violate the combined general statute. To put it another way, he argues that the great bodily injury enhancement supplies the "injury" element that resisting lacks, and that the battery with injury on an officer charge supplies the "officer" element that battery with serious bodily injury lacks.
In defendant's words: "It appears that a violation of the special statute will necessarily result in a violation of the general statutes. When a defendant commits a battery on a peace officer performing his duties and inflicts serious bodily injury when doing so (section 243(c)(2) and (d)), he is deterring the officer from performing his duties by using force or violence (section 69(a)), and is inflicting great bodily injury while doing so (section 12022.7(a))."
This is simply not how the Williamson rule works. As mentioned, the Williamson rule is designed to ascertain and to carry out legislative intent. It makes no sense to suppose that, when the legislature enacted two statutes, at different times, it intended them to supersede two other statutes whenever the latter two happened to coincide.
Finally, defendant argues (at some length) that he could have been convicted of battery with serious bodily injury, rather than resisting an officer. That is beside the point. "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226.) Ordinarily, when multiple charges apply, a prosecutor has discretion to decide whether to file all, some, or none. (See generally Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) For purposes of the Williamson rule, it is irrelevant that the particular defendant violated both statues.
We therefore conclude that defendant was properly convicted of resisting an officer, with a great bodily injury enhancement.
II
FAILURE TO CONSIDER REDUCING THE PUNISHMENT
FOR THE GREAT BODILY INJURY ENHANCEMENTS
Defendant contends that the trial court erroneously failed to consider reducing the punishment for the great bodily injury enhancements.
A. Additional Factual and Procedural Background.
At sentencing, defendant asked the trial court to strike the great bodily injury enhancements under section 1385. The trial court ruled: "So with regard to the motion to strike the enhancements . . . , I'm not sure that's appropriate. If I had the discretion, I wouldn't exercise it anyway. I wouldn't strike the enhancements." Accordingly, it imposed a consecutive three-year term on each enhancement (although it stayed one of them under section 654).
B. Discussion.
Section 1385, as relevant here, provides:
"(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. . . .
"(b)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
"(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a)."
While subdivision (a) of section 1385 refers to "an action," it has been broadly construed as allowing the dismissal of a single count or a single allegation of an accusatory pleading. "Section 1385 permits a court, 'in furtherance of justice, [to] order an action to be dismissed.' [Citation.] Although the statute literally authorizes a court to dismiss only an entire criminal action, [the Supreme Court has] held it also permits courts to dismiss, or 'strike,' factual allegations relevant to sentencing, such as those that expose the defendant to an increased sentence. [Citations.] However, the court's power under section 1385 is not unlimited; it reaches only the 'individual charges and allegations in a criminal action.' [Citation.]" (People v. Lara (2012) 54 Cal.4th 896, 900-901.)
Defendant's contention depends heavily on People v. Morrison (2019) 34 Cal.App.5th 217. Morrison held that the trial court's discretion to strike a firearm enhancement includes the discretion to reduce a greater firearm enhancement to a lesser included firearm enhancement. (Id. at pp. 220-223.)
In Morrison, an enhancement for personally and intentionally discharging a firearm and causing death (§ 12022.53, subd. (d)) was found true. (People v. Morrison, supra, 34 Cal.App.5th at p. 220.) The appellate court remanded so the trial court could consider reducing this "to a 'lesser included' enhancement under section 12022.53, subdivision (b) or (c) . . . ." (Id. at p. 221; see also id. at pp. 222-223, 225.) It reasoned that the discretion to "strike or dismiss an enhancement" under section 1385, as provided in section 12022.53, subdivision (h), included "the discretion to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a[n] enhancement under section 12022.53, subdivision (d) . . . ." (People v. Morrison, supra, at p. 223.)
Here, however, there is no lesser included enhancement. The statutory penalty for a great bodily injury enhancement is a flat three years. (§ 12022.7, subd. (a).) "It is well established that, as a general matter, a court has discretion under section 1385, subdivision (c), to dismiss or strike an enhancement, or to 'strike the additional punishment for that enhancement in the furtherance of justice.'" (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) Accordingly, the trial court's only options were to impose a three-year term or to strike the enhancement entirely. The imposition of a shorter term would result in an unauthorized sentence.
Separately and alternatively, even if the reasoning in Morrison applied here, we are on record as declining to follow Morrison. In People v. Yanez (2020) 44 Cal.App.5th 452, rev. granted Apr. 22, 2020, we held that a trial court has discretion to strike but not to reduce a firearm enhancement. (Id. at pp. 457-460.) Because review has been granted in Yanez, it is no longer binding, but it remains persuasive (Cal. Rules of Court, rule 8.1115(e)), not least because it is our own decision.
Defendant also cites People v. Marsh (1984) 36 Cal.3d 134, on which Morrison relied. (People v. Morrison, supra, 34 Cal.App.5th at p. 223.) In Marsh, the defendant pleaded guilty to a number of charges, including kidnapping for ransom with bodily harm. (Id. at p. 137.) He asked the trial court to strike the allegations of ransom and bodily harm, which would reduce the sentence from life without the possibility of parole, which in turn would make him eligible for a commitment to the California Youth Authority (YA); the court refused. (Id. at pp. 138-139.)
The Supreme Court held that "section 1385 is . . . available for use in the present case to strike the ransom and bodily harm allegations to reduce the required sentence for the kidnaping charge to allow YA eligibility." (People v. Marsh, supra, 36 Cal.3d at p. 143.) It relied on earlier cases that had allowed a trial court to strike special circumstances, prior conviction allegations, and weapon use enhancements. (Id. at pp. 142-143.) It added: "'The authority to dismiss the whole includes, of course, the power to dismiss or "strike out" a part.' [Citation.]" (Id. at p. 143.)
Defendant says: "Although Marsh does not specifically hold that a court can reduce an enhancement to a less serious enhancement, it recognizes section 1385 can be used to strike elements of an offense in order to impose what the trial court deems to be an appropriate sentence." This is a fair characterization. Defendant, however, is not seeking to have the trial court strike elements of an offense or an enhancement. He is seeking to have it strike years off the penalty. Marsh provides no authority for this.
Defendant also notes that, under section 1385, subdivision (b)(1), the trial court has discretion to strike the punishment for an enhancement, rather than striking the enhancement. Citing the statement in Marsh that the authority to dismiss the whole includes the authority to dismiss a part (People v. Marsh, supra, 36 Cal.3d at p. 143), he concludes that this allows the trial court to strike part of the punishment for an enhancement.
This subdivision, however, was enacted in 2000 (Stats. 2000, ch. 689, § 3, pp. 4558-4559), long after Marsh was decided. It creates a special situation in which a trial court may strike the punishment for an enhancement, yet leave the true finding on the enhancement available for use in future proceedings. (People v. Fuentes (2016) 1 Cal.5th 218, 225-226.) Marsh's general observation about the trial court's long-standing discretion under section 1385, subdivision (a) did not contemplate and does not apply to this special provision.
Finally, defendant also cites various broad generalizations about the trial court's discretion under section 1385. For example, in People v. Garcia (1999) 20 Cal.4th 490, the Supreme Court said that a trial court that is considering striking a strike prior should "consider among other things, '"'individualized considerations'"' [citation] 'such as the nature and circumstances of the defendant's present felonies' and his 'prospects.' [Citation.]" (Id. at p. 499.) And in People v. Williams (1981) 30 Cal.3d 470, it said, "'Mandatory, arbitrary or rigid sentencing procedures invariably lead to unjust results. Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender. Subject always to legislative control and appellate review, trial courts should be afforded maximum leeway in fitting the punishment to the offender.' [Citation.]" (Id. at p. 482.)
Be that as it may, trial courts do not have the leeway to make up punishments as they go along. As Williams acknowledged, the considerable leeway that they do have is "[s]ubject always to legislative control . . . ." (People v. Williams, supra, 30 Cal.3d at p. 482.) "A sentencing court has a duty to impose the punishment prescribed by law [citation] and has no discretion to deviate from the statutorily specified penalty [citation]." (People v. Martinez (2015) 240 Cal.App.4th 1006, 1012.) There is simply no statutory authority for what defendant seeks.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.