Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA304366. William N. Sterling, Judge.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Joann Pryor was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 1); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 2); child abuse by means of force likely to cause serious bodily injury (§ 273a, subd. (a)) (count 3); exhibiting a weapon (§ 417, subd. (a)(1)) (count 4); and exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8) (count 5). She appeals her conviction for child abuse on the ground that the trial court failed to instruct the jury on two lesser included offenses; she also argues that the trial court erred at sentencing when it imposed full-term consecutive sentences on counts 3 and 5 and when it failed to stay the sentence on count 2 pursuant to section 654. We conclude that any error in failing to instruct the jury on lesser included offenses was harmless under the facts of this case. We also modify the judgment to correct the sentencing errors.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Tabethia Magirl, her three-year-old daughter Trinity, and her younger son Daryl were walking down the street on June 13, 2006, running an errand. Magirl and Trinity were playing as they walked, with Magirl telling Trinity that she was going to “get” her and running behind Trinity. As they ran across a street, Joann Pryor was crossing the street in the opposite direction. Suddenly, Pryor struck Trinity over the head, hard, with a three-and-a-half foot long broomstick. Trinity screamed. Seeing Pryor raise the stick to hit Trinity again, Magirl wrenched the broomstick from Pryor’s hand and flung it away. She told her daughter to get away from Pryor, but Trinity kept approaching, crying hysterically, as Pryor and Magirl struggled. Pryor stabbed Magirl with a knife.
Magirl required surgery and was hospitalized for several days due to her injuries. Trinity had a bump on her head that lasted approximately six days as a result of being hit with the broomstick.
Pryor still held the broken broomstick and the knife when police located her. When one officer approached to ask her to drop the knife, Pryor said, “This is a good day to die.” She stood, dropped the broomstick, and advanced toward the officer while waving the knife in a circular motion with the blade pointed at him. Another officer used a taser on Pryor, which caused her to drop the knife and fall to the ground. She was taken into custody.
Pryor was charged with assault with a deadly weapon; assault by means likely to produce great bodily injury; child abuse by means of force likely to cause serious bodily injury; exhibiting a deadly weapon; and exhibiting a deadly weapon to a police officer to resist arrest. After a jury trial she was convicted as charged. Pryor appeals.
DISCUSSION
I. Lesser Included Offenses
With respect to her conviction for felony child abuse, Pryor argues that because there was not clear evidence that the assault she committed on Trinity was likely to cause great bodily injury, the trial court should have instructed sua sponte on the lesser included offenses of simple assault and misdemeanor child abuse. A trial court must instruct the jury on lesser included offenses for which there is substantial evidentiary support. (People v. Breverman (1998) 19 Cal.4th 142, 162.) We conclude that even if the jury should have been instructed on these lesser included offenses, any error in this regard was harmless. (Id. at p. 176; People v. Watson (1956) 46 Cal.2d 818, 836.)
It is not reasonably probable that Pryor would have been convicted of simple assault or misdemeanor child abuse if these offenses had been presented to the jury. Pryor hit a three-year-old child over the head with a three-and-a-half foot long broken broomstick. Magirl demonstrated the blow to the jury and described it as “hard.” Trinity suffered a bump on the head that lasted for six days. Forcefully striking a child on the head with a broomstick constitutes assault under circumstances likely to cause injury that is significant or substantial, not insignificant, trivial, or moderate: that is, great bodily injury. (See People v. Covino (1980) 100 Cal.App.3d 660, 668 [defining great bodily injury].) Based on the evidence presented, we cannot conclude that there is a reasonable probability that the jury would have returned a more favorable verdict if it had been instructed on simple assault and misdemeanor child abuse. (People v. Breverman, supra, 19 Cal.4th at p. 178.) Accordingly, any instructional error in failing to instruct on these two lesser included offenses was harmless here.
II. Sentencing Errors
Pryor and the People agree, as do we, that the trial court made two errors at sentencing. First, on counts 3 and 5, the trial court sentenced Pryor to the low term, doubled, and it ordered these terms to run consecutively to the sentence on count 1. Under People v. Nguyen (1999) 21 Cal.4th 197, 203-204, 207, however, the California Supreme Court held that unless full-term consecutive sentences are otherwise permitted or required, when calculating consecutive determinate terms under the Three Strikes Law for second-strike defendants convicted of multiple offenses, the consecutive determinate term to be doubled ordinarily is one-third the middle-term. Accordingly, on count 3, the trial court should have sentenced Pryor to double one-third the middle term of four years in state prison (§ 273a, subd. (a)), for a total of two years eight months in state prison, consecutive to the term in count 1. On count 5, the court should have imposed a sentence of double one-third the middle term of three years in state prison (§ 417.8), for a total of two years in state prison, also consecutive to the term in count 1.
Second, the trial court erred in failing to stay the sentence on count 2 under section 654. The trial court imposed a low term of two years, doubled and consecutive, on count 3, and then expressed some perplexity over whether section 654 required that the sentence on count 2 be stayed because both counts 2 and 3 were based on “the same conduct.” The court admitted that it was “not sure about this, ” and said that because of that uncertainty, it selected the low term (which it then doubled) and designated the sentence as concurrent. The court concluded, “And if it’s 654, then I made a mistake. But it’s concurrent because I’m not sure, and it’s four years.”
Section 654, subdivision (a) provides, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” Given the trial court’s conclusion that the two offenses involved the same conduct, section 654 prohibits punishment for both offenses here. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312 [“The purpose of [section 654] is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime”].) From the court’s statements at sentencing, we agree with the parties that the trial court intended Pryor to serve the term imposed on count 3 (four years, consecutive) and that the term on count 2 (four years, concurrent) should have been stayed. As intended by the trial court with its choice to impose a concurrent sentence on count 2, this modification to the judgment pursuant to section 654 results in no change to Pryor’s overall term.
DISPOSITION
The judgment is modified as follows: On count 2, to stay the sentence of four years, concurrent, pursuant to Penal Code section 654; on count 3, to impose a sentence of two years eight months in state prison, consecutive; and on count 5, to impose a sentence of two years in state prison, also consecutive. The abstract of judgment is ordered to be amended to reflect the stay and modified sentences. The clerk of the superior court is ordered to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.