Opinion
D053836.
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. GARRETT G. MARKER, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted Garrett G. Marker of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)). In connection with the assault count the jury also found Marker personally inflicted great bodily injury within the meaning of sections 1192.7, subdivision (c)(8) and 12022.7, subdivision (a). In a subsequent proceeding the trial court found Marker had a prior serious/violent felony or strike conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)(1)).
Statutory references are to the Penal Code.
The court sentenced Marker to 14 years in prison, consisting of the middle term of three years on the assault count doubled under the "Three Strikes" law, plus a consecutive three-year enhancement for personally inflicting great bodily injury and a consecutive five-year term for the prior serious conviction. The court imposed and stayed a concurrent six-year term for battery with serious bodily injury pursuant to section 654.
Marker appeals, contending the court should have vacated his battery conviction rather than impose a stayed sentence.
FACTS
On October 11, 2007, Bradley Sampson, Scott Obermayer, Russell Hilke, and Zack Baur went to Peabodys, a Carlsbad bar, for a drink after dinner. Also at Peabodys were Marker, Ricky Renaldo and Nicholas Bellantoni.
Obermayer went to the bars restroom. Inside was Bellantoni, who was using the urinal; his buttocks were exposed, revealing a tattoo which read, "Eat Shit." Upon seeing the tattoo, Obermayer chuckled or laughed. Bellantoni became angry, pulled out a knife and pointed it at Obermayer. At that point, Sampson walked into the restroom; he saw the tattoo and chuckled or laughed and then asked about the knife. Bellantoni responded by asking if they wanted to fight and by waving the knife. Obermayer and Sampson put up their hands to indicate they were not interesting in fighting. Baur entered the restroom. Bellantoni said, "You dont know who youre fuckin[g] with." Bellantoni then left the restroom, as did Baur.
Hilke entered the restroom. Bellantoni motioned for Marker to accompany him to the restroom. Upon entering the restroom Bellantoni began to argue with Hilke and punched him twice. Sampson, who was at the urinal, quickly zipped his pants and turned toward the fight. As Sampson turned, he was "blindsided" by a punch thrown by Marker. Sampsons jaw was fractured in two places. Sampson fell back against the wall and grabbed onto Marker. The two slid to the floor, which had become slippery because of the blood from Sampsons jaw, and wrestled briefly. When Marker got up, he and Bellantoni ran from the restroom and out of the bar.
Bellantoni was found by police outside of another bar. His knife was recovered. A week later police arrested Marker at his residence; he had been identified in a photo line-up.
Bellantoni, who was charged with assault by means likely to produce great bodily injury (§ 245, subd. (a)), battery with serious bodily injury (§ 243, subd. (d)), and exhibiting a deadly weapon other than a firearm in a rude, angry and threatening manner (§ 417, subd. (a)(1)), was not tried with Marker. At the time of Markers trial, which took place during April 2008, Bellantoni remained at large. A warrant for Bellantonis arrest had been issued October 31, 2007, and was outstanding.
The jury was instructed, pursuant to CALCRIM No. 373, not to speculate about the prosecution status of another person who appeared to have been involved in the crime.
One of Sampsons fractures protruded through his skin and required surgery. Sampsons jaw was wired closed for eight weeks to allow the fracture to heal. Sampson also experienced loosened teeth.
DISCUSSION
Marker contends under the rule prohibiting multiple convictions based on necessarily included offenses it was improper to convict him of battery with serious bodily injury because that crime is a necessarily included offense of assault with force likely to produce bodily injury when enhanced with a finding that he personally inflicted great bodily injury. Therefore, Marker argues, the trial court should have vacated or dismissed the battery with serious injury count rather than staying the sentence for it. Marker is mistaken.
A person generally may be convicted of more than one crime arising out of the same act or course of conduct, but will not be punished for more than one of the crimes. (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed ); see §§ 654, 954.) However, "[a] judicially created exception to the general rule permitting multiple conviction `prohibits multiple convictions based on necessarily included offenses. [Citation.]" (Reed, at p. 1227; see also People v. Pearson (1986) 42 Cal.3d 351, 355.)
Ordinarily, one offense may be necessarily included in another under either of two tests. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]" (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
In Reed, however, the Supreme Court held that where the validity of multiple convictions is in issue, only the statutory elements test is to be used in determining whether an offense is necessarily included in another. The Reed court explained: "The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. . . . But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses." (Reed, supra, 38 Cal.4th at p. 1229.) Accordingly, the Reed court concluded: ". . . Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (Id. at p. 1231.) In Reed, the Supreme Court found the defendant properly was convicted of possession of a firearm by a felon, carrying a concealed firearm, and carrying a loaded firearm while in a public place—all based on the same act of carrying a handgun—because under the elements test they were not necessarily included offenses. Being a felon was not a statutory element of the carrying crimes. Under the accusatory pleading test, the two carrying counts would have been necessarily included offenses because the information alleged the defendants prior felony conviction in all three counts. (Id. at pp. 1228, 1230-1231.)
"Defendant committed each of these crimes, albeit during the same course of conduct. The Legislature has made clear that a defendant may be convicted of more than one offense even if they arise out of the same act or course of conduct. (§ 954.) We see no reason to prohibit multiple convictions that section 954 permits simply because of the way the offenses are charged. `To immunize defendant from conviction of being a felon in possession of a firearm simply because the felony conviction was alleged as to each of the weapons offenses `would be irrational and would frustrate the strong legislative purpose behind [all three] statutes. [Citation.]" (Reed, supra, 38 Cal.4th at p. 1230.)
Recently, our Supreme Court reaffirmed the holding in Reed and held "enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses." (People v. Sloan (2007) 42 Cal.4th 110, 114.) "In deciding whether multiple conviction is proper, a court should consider only the statutory elements." (Id. at p. 118.) Sloan presented a closely analogous situation to this case—a defendant was convicted of multiple felonies based on a single incident in which he threw his wife to the ground, kicked her and broke her leg. (Id. at p. 114.) The defendant was charged and convicted of, among others, inflicting corporal injury on a spouse, assault with force likely to cause great bodily injury and battery with serious bodily injury. Both the corporal injury and assault counts had accompanying enhancements for personally inflicting great bodily injury. (Id. at p. 115.)
Reed and Sloan require rejection of Markers claim of improper multiple conviction. Under the elements test, Markers battery count was not a necessarily included offense of the aggravated assault count enhanced by the personal infliction of great bodily injury allegation. The trial court properly stayed Markers sentence for the battery with serious injury count under section 654.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
McCONNELL, P. J.
OROURKE, J.