Opinion
2d Crim. No. B294463
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. ERICK RUSSELL, Defendant and Appellant.
Arielle Bases, 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, Paul M. Roadarmel, Jr., and David A. Wildman, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CR12764)
(Santa Barbara County)
In the course of a two-minute attack, an assailant stabbed the victim four times, inflicting four wounds. We conclude that he was properly convicted of four counts of assault with a deadly weapon.
Erick Russell appeals from the judgment after a jury convicted him of four counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), counts 2-5) and found that he inflicted great bodily injury as to each count (§ 12022.7, subd. (a)). The jury acquitted him of attempted murder (§§ 664/187, subd. (a), count 1). The trial court sentenced him to seven years in state prison (four years for count 2 plus three years for the enhancement). Sentences on counts 3, 4 and 5 were run concurrent or stayed.
All further statutory references are to the Penal Code.
The minute order and abstract of judgment show the trial court imposed sentences of seven years each for counts 3 through 5, concurrent to count 2. The reporter's transcript shows that the court stayed sentence on counts 3 through 5 pursuant to section 654. The minute order and abstract of judgment prevail because section 654 does not govern multiple counts of the same statute. (People v. Correa (2012) 54 Cal.4th 331, 344.)
Russell contends: (1) only one count of assault was committed, (2) the trial court should have dismissed the case because the police failed to retrieve and preserve surveillance videos, and (3) the prosecutor misstated the law during closing argument. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Russell was in Ortega Park when Luis Cuevas repeatedly asked him for beer. After Russell fell asleep on a park bench, Cuevas hit him several times in the head and shoulder. Russell stood up and fought with Cuevas in the park.
Cuevas left the park. About 10 minutes later, Cuevas was half a block away, walking away from the park. Russell chased after him and stabbed him with a folding knife. Russell made approximately 21 stabbing motions within about two minutes, inflicting wounds to Cuevas's arm, left and right chest, and head.
When police responded, Russell said he stabbed Cuevas in self-defense. He told police, "an eye for an eye." He made "broken, nonspecific" statements about an earlier incident in the park. When asked about witnesses, he motioned to the park. Police looked but found no helpful witnesses there.
Trial testimony varied about the fight in the park. One witness told police that Russell brandished the knife while leaving the park, but later denied seeing that. Russell testified he acted in self-defense, and denied brandishing the knife in the park.
DISCUSSION
Multiple violations
Russell claims he was improperly convicted of multiple counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The charging document, the jury instructions, and the verdicts identify one count for each wound: a laceration of the left tricep (count 2), and puncture wounds to the left chest (count 3), right chest (count 4), and back of the head (count 5). We affirm the convictions for four counts.
Russell did not forfeit his claim by failing to raise it before he did so for the first time in his sentencing memorandum. Failure to object to jury instructions does not result in forfeiture where they incorrectly state the law, affect the defendant's substantial rights, or misstate the elements of the offense. (People v. Mason (2013) 218 Cal.App.4th 818, 823.) Nor did he forfeit his claim by failing to "press for a final ruling" at the sentencing hearing; the trial court ruled by sentencing him on all four counts. (Cf. People v. Johnson (2018) 6 Cal.5th 541, 586 [tentative ruling on evidentiary objection].)
A claim of an unauthorized sentence is reviewable, even if not raised in the trial court. (People v. Brents (2012) 53 Cal.4th 599, 618 [sentencing for multiple counts from same incident]; People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17 [§ 654 error].) Imposition of multiple punishments for one crime is unauthorized, "and the fact that the sentences were ordered to run concurrently does not cure the error." (People v. Nor Woods (1951) 37 Cal.2d 584, 586 [only one theft committed as part of single transaction; conviction on second count reversed]; In re Wright (1967) 65 Cal.2d 650, 655.) We therefore consider the merits.
"'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.]' [Citation.]" (People v. Reed (2006) 38 Cal.4th 1224, 1226, original italics; see § 954.)
Multiple counts for identical acts need not be "punctuated by violations of other statutes" or be separated "by an appreciable passage of time" or by "a reasonable opportunity for reflection." (People v. Harrison (1989) 48 Cal.3d 321, 332.) In Harrison, our Supreme Court upheld convictions for "rapidly repeated crimes" of genital penetration (§ 289). (Harrison, at p. 325.) Harrison was followed in People v. Jimenez (2002) 99 Cal.App.4th 450, which affirmed multiple counts of lewd conduct on a child. The court found "no requirement that there be a delay between the completion of one act and the commencement of another." (Id. at pp. 456-457.) In People v. Whitmer (2014) 59 Cal.4th 733, 737, our Supreme Court rejected the principle that a series of theft offenses must be prosecuted as one count when committed "pursuant to a single intention, a single impulse, and a single plan."
In light of Harrison and Whitmer, "a defendant may be convicted of multiple crimes—even if the crimes are part of the same impulse, intention or plan—as long as each conviction reflects a completed criminal act." (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518 [multiple phone calls on same day attempting to dissuade witness]; People v. Campbell (2017) 12 Cal.App.5th 666 [hitting 10 groups of people while continuously driving car constituted 10 counts of failure to stop at scene of an accident].)
To determine the correct number of counts, we "'determine when "the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once."' [Citation.]" (People v. Wilson (2015) 234 Cal.App.4th 193, 199.) "'The gravamen of the crime defined by [section 245] is the likelihood that the force applied or attempted to be applied will result in great bodily injury.' [Citation.]" (People v. Colantuono (1994) 7 Cal.4th 206, 217, italics omitted.) The elements of assault are an intentional act and knowledge that the act will probably and directly result in physical force against another. (People v. Williams (2001) 26 Cal.4th 779, 790 (Williams).) Here, each thrust of the knife was a separate intentional act likely to result in great bodily injury.
In People v. Johnson (2007) 150 Cal.App.4th 1467, 1474, the court affirmed three counts of corporal injury on a cohabitant (§ 273.5) occurring in a single incident. The counts corresponded to "multiple applications of physical force result[ing] in separate injuries." (Id. at p. 1477.) The court upheld three counts because section 273.5 "is complete upon the willful and direct application of physical force upon the victim, resulting in a wound or injury." (Ibid.) Here, each stabbing motion was a separate act that would "probably and directly result in physical force against another." (Williams, supra, 26 Cal.4th at p. 790.)
Trombetta/Youngblood motion
Police obtained a surveillance video from a nearby business of portions of the fight in the street. Russell contends the trial court erred in failing to dismiss the case because the police did not retrieve and preserve videos from cameras in the park that might have shown the earlier park altercation. We are not persuaded.
The city kept videos recorded by cameras located in Ortega Park for approximately three weeks, and police computers could access them during that period. A month after the crime, Russell subpoenaed the park videos, but the city had already destroyed them.
The state's failure to retain evidence violates due process when it "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (California v. Trombetta (1984) 467 U.S. 479, 489 (Trombetta).) But when evidence is merely "potentially useful" to the defense, failure to retain it violates due process only if the government acted in bad faith. (Arizona v. Youngblood (1988) 488 U.S. 51, 58 (Youngblood); People v. Lucas (2014) 60 Cal.4th 153, 221-222, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
Bad faith may be shown where police seek to gain a tactical advantage over the defendant, seek to harass the defendant, or where "the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." (Youngblood, supra, 488 U.S. at pp. 57-58.) "The presence or absence of bad faith . . . must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." (Id. at p. 56, fn. *.) We review the denial of the Trombetta/Youngblood motion for substantial evidence, viewing the record in the light most favorable to the judgment. (People v. Alvarez (2014) 229 Cal.App.4th 761, 774 (Alvarez).)
Russell argues the videos would have been exculpatory by showing Cuevas attacking him in the park, supporting his claim of self-defense. But substantial evidence in the record shows that any exculpatory value of the park videos, or their potential usefulness to the defense, was not apparent to police before they were destroyed. Because the record shows that police had only limited and ambiguous information about a prior altercation in the park, they did not err in failing to retain the videos. (Trombetta, supra, 467 U.S. at p. 489; Youngblood, supra, 488 U.S. at p. 56, fn. *.)
Russell also asserts the videos would confirm his testimony that he did not display the knife in the park. But it was not until months after the crime that a witness told police that Russell had done so. In addition, the quality of the videos after sunset was poor, and whether they would show he was not holding a knife is speculative. Due process was not violated because the exculpatory value of the videos, or their potential usefulness, was not apparent before they were destroyed.
Russell's reliance on Alvarez is misplaced. There, police failed to retain surveillance videos of the area of a robbery. A codefendant, Cisneros, asked police the night of the incident to obtain the videos, stating that neither he nor Alvarez was involved in the crime. (Alvarez, supra, 229 Cal.App.4th at pp. 769, 778.) At a court appearance two days later, defense counsel discussed the videos, and the prosecution stated they would not be destroyed. (Id. at p. 765.) When the videos were nonetheless destroyed, the trial court dismissed the case. (Id. at p. 764.) The dismissals of Cisneros and Alvarez were affirmed, based on substantial evidence of bad faith. (Id. at p. 777.) Unlike the police and prosecution in Alvarez, neither the police nor the prosecution here was on notice that the park videos were exculpatory, or potentially useful to the defense, before they were destroyed.
In any event, failure to retain the park videos was harmless. The prosecution conceded that Cuevas attacked Russell in the park. The jury was instructed it could consider whether Cuevas harmed Russell in the past if relevant to his state of mind, and that Russell had the right, if reasonably necessary, to pursue Cuevas until the danger of death or bodily injury had passed. (Modified versions of CALCRIM Nos. 505 & 3470; People v. Minifie (1996) 13 Cal.4th 1055, 1068-1069; People v. Blessett (2018) 22 Cal.App.5th 903, 951, fn. 23.) Moreover, the jury heard evidence and argument from the defense about the failure to retain the videos. Any error was thus harmless. (People v. Von Villas (1992) 10 Cal.App.4th 201, 247.)
Prosecutorial misconduct
Russell contends the prosecution committed misconduct during closing argument by misstating the law regarding self-defense. We conclude Russell forfeited the issue and the argument did not constitute misconduct.
The prosecutor made several references to Mahatma Gandhi: that he "preached absolute nonviolence even to those people who committed violence against others"; that "Mahatma Gandhi tells you that violence should not befall [violent] people simply because of who they are"; that Cuevas was "fatally flawed" but was, "as Mahatma Gandhi says, a human being nonetheless"; and, "You ask yourself, this level of violence, is this justified? Is this what Gandhi would think was appropriate?" The prosecutor paraphrased a statement he attributed to Gandhi, "An eye for an eye and we're all blind." The prosecutor also stated, "only in the rarest of instances . . . do you ever legally justify the amount of violence that you observed time and time again on that video."
Russell forfeited a challenge to the prosecutor's argument by failing to timely object in the trial court and request a curative admonition. (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) Anticipating our conclusion, Russell seeks to avoid forfeiture by arguing that failure to object constituted ineffective assistance of counsel. To prevail on this argument, he must show (1) objectively deficient performance by counsel and (2) resulting prejudice, i.e., "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (Id. at p. 676, citing Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Because we conclude below that the comments were not likely to mislead the jury, Russell has not shown prejudice. Accordingly, Russell has not established ineffective assistance of counsel.
Russell's claim of misconduct also fails on the merits. To establish prosecutorial misconduct, "the defendant must show that, "'[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.'" (Centeno, supra, 60 Cal.4th at p. 667.) Attorneys have "significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law.'" (Id. at p. 666.) Closing argument may include "'"'illustrations drawn from common experience, history or literature.' [Citation.]"'" (People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Harrison (2005) 35 Cal.4th 208, 248.)
Here, it is not reasonably likely the jury was misled. The jury would not have understood that "absolute nonviolence" as "preached" by Gandhi superseded the jury instructions given in this case regarding self-defense. That Cuevas had the right to be treated as "a human being" is consistent with the law and the instructions. That the extent of Russell's violence is permitted "only in the rarest of instances" is legitimate commentary.
We are concerned, however, with one comment: "You ask yourself, this level of violence, is this justified? Is this what Gandhi would think was appropriate?" The legal standard is not what Gandhi would think, but what "'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .' [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.)
While the prosecutor's suggestion was inconsistent with the law, the arguments as a whole were not reasonably likely to mislead the jury. The prosecutor accurately discussed the self-defense jury instructions, including that Russell was "only entitled to use an amount of force that a reasonable person would believe is necessary." (Modified versions of CALCRIM Nos. 505, 3470 & 3472.) Defense counsel's closing argument clarified that Russell had a right to defend himself and "does not have to be Gandhi."
Finally, the court properly instructed the jury on self-defense, including the reasonable person standard and the right to use "reasonably necessary" force. (Modified versions of CALCRIM Nos. 505 & 3470.) The court also instructed the jury to follow the court's instructions rather than any conflicting statements by counsel. (CALCRIM No. 200.) Arguments of counsel "'are likely viewed as the statements of advocates'" and "'generally carry less weight with a jury than do instructions from the court,'" which "'are viewed as definitive and binding statements of the law.' [Citation.]" (People v. Mendoza (2007) 42 Cal.4th 686, 703; see Boyde v. California (1990) 494 U.S. 370, 384.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
YEGAN, Acting P. J.
PERREN, J.
Thomas Pearce Anderle, Judge
Superior Court County of Santa Barbara
Arielle Bases, 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, Paul M. Roadarmel, Jr., and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.