Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, No. 08CM7052, Thomas DeSantos, Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant Matthew Sasson.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant David Williams.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Inmates Matthew Sasson and David Williams attacked fellow inmate Mickie Owens in a Security Housing Unit (SHU) exercise yard at Corcoran State Prison. A jury found each guilty of one count of attempted murder with personal infliction of great bodily injury, two counts of assault with personal infliction of great bodily injury, and one count of possession of a sharp instrument. On appeal, both challenge the sufficiency of the evidence and argue instructional error, prosecutorial misconduct, and abuse of sentencing discretion. We reverse one of the two assault convictions but otherwise affirm the judgments.
BACKGROUND
On April 25, 2008, the district attorney filed an information charging Sasson and Williams with one count of attempted murder (count 1; Pen. Code, §§ 187, subd. (a), 664), one count of assault with a deadly weapon or by means of force likely to produce great bodily injury by a prisoner serving a life sentence (count 2; § 4500), one count of assault with a deadly weapon or by means of force likely to produce great bodily injury by a prisoner serving a sentence other than a life sentence (count 3; § 4501), and one count of possession of a sharp instrument by a prisoner (count 4; § 4502, subd. (a)) on November 30, 2007. The information alleged personal infliction of great bodily injury by Sasson and Williams in counts 1, 2, and 3 (§ 12022.7, subd. (a)), two serious felony priors as to Sasson and three serious felony priors as to Williams in counts 1, 2, and 3 (§ 667, subd. (a)(1)), and two strike priors as to Sasson and three strike priors as to Williams in counts 1, 2, 3, and 4 (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court bifurcated the allegations of the priors.
Later statutory references are to the Penal Code unless otherwise noted.
On July 9, 2009, a jury found Sasson and Williams guilty as charged and found the great-bodily-injury allegations true. Out of the presence of the jury, the court, with all counsel in agreement, deemed the attempted murder to be in the second degree. On July 10, 2009, both admitted the strike priors, the prosecutor moved to dismiss the serious felony priors, and the court granted the prosecutor’s motion.
On August 7, 2009, the court imposed on Sasson and Williams identical sentences of an indeterminate term of life without the possibility of parole for 27 years (three times the term otherwise provided) on the assault by a prisoner serving a life sentence (§§ 667, subd. (e)(2)(A)(1), 1170.12, subd. (c)(2)(A)(1), 4500) plus a determinate term of three years on the great bodily injury enhancement (§ 12022.7, subd. (a)) in count 2. The court imposed and stayed identical sentences of an indeterminate term of 25 years to life (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) plus a determinate term of three years on the great bodily injury enhancement (§ 12022.7, subd. (a)) in counts 1 and 3 and imposed and stayed identical sentences of an indeterminate term of 25 years to life (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in count 4. The court imposed identical restitution fines of $10,000 (§ 1202.4, subd. (b)) and imposed and stayed identical additional parole revocation restitution fines of $10,000 (§ 1202.45).
Sasson and Williams join in each other’s arguments. (Cal. Rules of Court, rule 8.200(a)(5).)
Sasson and Williams (1) challenge the sufficiency of the evidence of (a) intent to kill, (b) service of sentences other than life sentences at the time of the commission of the assault, (c) a deadly weapon or force likely to produce great bodily injury, (d) personal infliction of great bodily injury, and (e) possession of a sharp instrument. Additionally, both challenge (2) the omission of sua sponte instruction on simple assault, (3) the prosecutor’s argument to the jury, and (4) the imposition of $10,000 restitution fines.
DISCUSSION
1. Sufficiency of the Evidence
The foundation of our consideration of Sasson’s and Williams’s challenges to the sufficiency of the evidence is the following overall summary of the record. Afterward we address each of those five challenges individually.
During his morning gun duty shift on November 30, 2007, Correctional Officer Luis Urena saw Sasson and Williams attack Owens without provocation in the yard. He saw Sasson’s and Williams’s arms moving in a way he described both as a “punching” and a “striking” manner and saw Owens trying, without success, to defend himself by putting his hands up to push Sasson and Williams away. Several times Urena yelled “get down, ” but Sasson and Williams refused.
With a 40-millimeter launcher, Urena shot a less-than-lethal round at Williams, who, after the round struck him in the buttocks, stopped attacking Owens and got face down on the ground with his hands and legs spread. After Williams stopped attacking him, Owens fell to the ground, and Urena saw blood on his head and neck, but Sasson continued to attack him. Urena again yelled “get down” several times, but Sasson still did not stop attacking him. Urena shot a less-than-lethal round at Sasson, who, after the round struck him somewhere in the upper body, got face down on the ground with his hands and legs spread. Urena never saw anything in anyone’s hands and never saw anyone toss anything away, but he saw something that looked like a weapon on the ground about a foot away from Owens’s feet after Sasson got off him.
Tyler Davis, a licensed vocational nurse, performed an initial medical evaluation at the scene of the attack and bandaged lacerations of Owens’s neck, but when she saw that her compresses could not stop the bleeding she had him transported by ambulance to the hospital at Corcoran. Alex Martinez, a correctional officer who escorted inmates off the yard after the attack, saw blood on Owens, Sasson, and Williams. He assisted in the process of “stripping out the inmates and return[ing] them to their assigned houses” but saw no blood on any other inmate.
Correctional officers collected blood from Sasson’s hands, Williams’s right hand, and Williams’s boxer shorts and observed scrapes and bruises on Sasson’s knees and hip. A wound on Sasson’s arm, an abrasion and blood flow on Williams’s buttocks, and blood on Williams’s boxer shorts were all consistent with impact from a less-than-lethal round.
Correctional officers searched the yard for evidence and found two weapons five or six feet apart from each other. Officers characterized one weapon, a razor blade with a plastic handle, as a “slashing” weapon, and the other weapon, a piece of brown plastic with a metal tip on one end and a cloth handle on the other end, as a “stabbing” weapon. (Peo. Exhs. 9 & 10.) No one diagrammed the location or processed the weapons for scientific evidence.
A correctional officer who observed Owens in the Corcoran hospital noticed that the slash wounds to his neck were still bleeding and took photographs of those wounds and of smaller wounds to his face and torso. (Peo. Exh. 11-15.) Owens identified no one involved in the attack. Urena identified no one in a grainy surveillance video showing a two-on-one attack in the yard. (Peo. Exh. 16.)
a. Intent to Kill
Sasson and Williams argue that insufficiency of the evidence of intent to kill requires reversal of the attempted murder convictions in count 1. The Attorney General argues the contrary.
The elements of attempted murder are (1) a specific intent to murder a human being and (2) a direct but ineffectual act done toward its commission. (People v. Koontz (1984) 162 Cal.App.3d 491, 495.) Express malice, of course, is another term for specific intent to kill. (People v. Lee (1987) 43 Cal.3d 666, 671.) Reliance on implied malice to sustain a charge of attempted murder is logically impossible since implied malice cannot coexist with express malice. (Id. at p. 670.) On those premises, Sasson and Williams argue, “A fist fight, even two against one, neither logically nor reasonably supports an inference of an intent to kill. And that is all that is present in this case.” In rejoinder, the Attorney General characterizes the record as one of “strong circumstantial evidence of appellants’ intent to kill Owens, based on their actions, the type of weapons used, and the wounds to Owens’s neck.”
Even without evidence of motive, the rule is “well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and the circumstances of the crime.” (People v. Smith (2005) 37 Cal.4th 733, 741.) Together, circumstantial and direct evidence shows that Sasson and Williams initiated a coordinated and persistent two-on-one attack, without provocation, on an apparently unsuspecting and defenseless victim. The attack inflicted slash wounds consistent with the razor blade weapon found in the yard afterward. Ignoring Urena’s repeated orders, Sasson and Williams kept attacking Owens until each was hit by a less-than-lethal round from a 40-millimeter launcher. It is common knowledge that the carotid artery in the neck supplies blood to the brain. The slashing of Owens’s neck with the razor blade weapon shows intent to harm a vital area of the body. (See People v. Avila (2009) 46 Cal.4th 680, 701-702 (Avila).)
Nonetheless, Sasson and Williams argue that there is no evidence the “arguable weapons” found in the yard after the attack belonged to one of them “as opposed to one of the other 14 inmates” in the yard, that there is no evidence “of motive, ill will or any reason whatsoever” to attempt to kill Owens, and that even if one had intent to kill there is no evidence the other did.
Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – credible and reasonable evidence of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318 (Jackson); People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) That standard, which applies to circumstantial and direct evidence alike, requires us to presume in support of the judgment the existence of every fact a reasonable trier of fact reasonably could have deduced from the evidence. (Prince, supra, at p. 1251.) By that standard, our review of the record persuades us that a sufficiency of the evidence of intent to kill is in the record. (Ibid.) Sasson’s and Williams’s insufficiency of the evidence argument simply asks us to reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333 (Bolin).)
b. Service of Sentences Other than Life Sentences
Sasson and Williams argue, the Attorney General agrees, and we concur, in light of the stipulation that both were serving life sentences and of the lack of any evidence that either was serving a sentence other than a life sentence, that reversal of the assault convictions in count 3 is imperative on the ground of insufficiency of the evidence.
c. Deadly Weapon or Force Likely to Produce Great Bodily Injury
Sasson and Williams argue that insufficiency of the evidence of a deadly weapon or force likely to produce great bodily injury requires reversal of the assault convictions in count 2. The Attorney General argues the contrary.
Sasson and Williams make the same argument as to count 3. That argument is moot in light of our reversal of the convictions in count 3 on the ground of insufficiency of the evidence. (Ante, part 1b.)
As the court instructed with reference to the element at issue, “The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; [¶] and/or [¶] The defendant did an act that by its nature would directly and probably result in the application of force to a person, and the force used was likely to produce great bodily injury.” (CALCRIM No. 2720.) Sasson and Williams incorporate the previous argument about insufficiency of the evidence of intent to kill (ante, part 1a) and argue alternative scenarios here, too (e.g., fists are not likely to produce great bodily injury; Owens used the weapon or weapons to defend himself against Sasson and Williams; Owens suffered lacerations to his neck when a blow from Sasson or Williams caused the weapon or weapons to strike his neck).
Just as a conviction of assault by means of force likely to produce great bodily injury can stand on a record with evidence of the use of hands or fists alone, a conviction of assault with a deadly weapon likewise can stand on a record without an eyewitness to the use of a weapon. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028; People v. Patterson (1953) 118 Cal.App.2d 45, 49-50.) Our review of the whole record in the light most favorable to the judgment for substantial evidence of guilt beyond a reasonable doubt persuades us that a sufficiency of the evidence of a deadly weapon or force likely to produce great bodily injury is in the record. (Jackson, supra, 443 U.S. at p. 318; Prince, supra, 40 Cal.4th at p. 1251.) Again, we reject Sasson’s and Williams’s tacit invitation to reweigh the facts. (Bolin, supra, 18 Cal.4th 297 at pp. 331-333.)
d. Personal Infliction of Great Bodily Injury
Sasson and Williams argue that insufficiency of the evidence of personal infliction of great bodily injury requires reversal of the great bodily injury enhancements in counts 1 and 2. The Attorney General argues the contrary.
See ante, fn. 3.
As the court instructed, “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM No. 3160.) With commendable candor, Sasson and Williams, though arguing that the prosecution’s failure to present evidence “establishing the extent or degree” of Owens’s injury requires reversal, acknowledge “the very high standard which must be met to justify reversal” on the ground of insufficiency of the evidence.
The rule is “well settled that the determination of great bodily injury is essentially a question of fact, not of law.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) There is no requirement of permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function. (Ibid.) Here, the record includes the nurse’s testimony that she had Owens transported by ambulance to the hospital after bandages on the lacerations of his neck failed to stop the bleeding, the correctional officer’s testimony that Owens’s neck was still bleeding when he saw him at the hospital, and the photograph the correctional officer took showing the slash wounds to his neck. Our review of the whole record in the light most favorable to the judgment for substantial evidence of guilt beyond a reasonable doubt persuades us that a sufficiency of the evidence of personal infliction of great bodily injury is in the record. (Jackson, supra, 443 U.S. at p. 318; Prince, supra, 40 Cal.4th at p. 1251.) Once again, we reject Sasson’s and Williams’s tacit invitation to reweigh the facts. (Bolin, supra, 18 Cal.4th 297 at pp. 331-333.)
e. Possession of Sharp Instrument
Sasson and Williams argue that insufficiency of the evidence of possession of a sharp instrument requires reversal of the possession conviction in count 4. The Attorney General argues the contrary.
As the court instructed on the elements of possession of a sharp instrument, “1. The defendant was present at or confined in a penal institution; [¶] 2. The defendant possessed or carried on his person or had under his custody or control a sharp instrument; [¶] 3. The defendant knew that he possessed or carried on his person or had under his custody or control a sharp instrument; [¶] AND [¶] 4. The defendant knew that the object could be used ‘as a stabbing weapon, ’ or ‘a slashing weapon.’” (CALCRIM No. 2745.) Sasson and Williams incorporate the previous argument about insufficiency of the evidence of intent to kill (ante, part 1a) and argue alternative scenarios here, too (e.g., the piece of brown plastic with a metal tip on one end and a cloth handle on the other end was too dull to be a “stabbing” weapon and too large to entirely hide from Urena’s view inside a person’s hand; punches could have caused all of the wounds Owens suffered other than the lacerations to his neck).
Although a sharp instrument obviously “must be sharp, ” an object need not necessarily have “a cutting blade, like a knife or razor blade, ” to be a sharp instrument within the scope of section 4502. (People v. Hayes (2009) 171 Cal.App.4th 549, 560.) The jurors were entitled to use a commonsense meaning of the word in determining whether the piece of brown plastic with a metal tip on one end and a cloth handle on the other end was a sharp instrument. Whether or not the weapon was too large to entirely hide from Urena’s view inside a person’s hand, and whether or not punches caused Owens’s other wounds, the jurors were entitled to infer from the circumstantial evidence whether Sasson and Williams committed the crime of possession of a sharp instrument. (Cf. People v. Venegas (1994) 25 Cal.App.4th 1731, 1742.) Our review of the whole record in the light most favorable to the judgment for substantial evidence of guilt beyond a reasonable doubt persuades us that a sufficiency of the evidence of possession of a sharp instrument is in the record. (Jackson, supra, 443 U.S. at p. 318; Prince, supra, 40 Cal.4th at p. 1251.) Yet again, we reject Sasson’s and Williams’s tacit invitation to reweigh the facts. (Bolin, supra, 18 Cal.4th 297 at pp. 331-333.)
2. Omission of Instruction on Simple Assault
Sasson and Williams argue that the omission of sua sponte instruction on simple assault requires reversal of the assault convictions in count 2. The Attorney General argues that the court had no sua sponte duty to so instruct and that error, if any, was harmless.
See ante, fn. 3.
The parties agree that as a general rule a court has a sua sponte duty to instruct on general principles of law that are closely and openly connected with the facts of the case and that are necessary for the jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) The parties agree, too, that the general rule applies to the crime of assault with a deadly weapon or by means of force likely to produce great bodily injury by a prisoner serving a life sentence (§ 4500). (See People v. St. Martin (1970) 1 Cal.3d 524, 533-536.) The issue on which the parties disagree is whether there is evidence “‘substantial enough to merit consideration’ by the jury” that Sasson and Williams are guilty of only the lesser included offense of simple assault (§ 240). (Breverman, supra, at p. 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 (Flannel), superseded by statute on another ground as stated by In re Christian (1994) 7 Cal.4th 768, 777.)
The crux of Sasson’s and Williams’s argument is that the jury could have found that neither “used a deadly weapon during the confrontation with Owens and, without a weapon, the assault with fists was not a force likely to produce great bodily injury.” The premise of the argument is that the jury could have grounded the true findings of personal infliction of great bodily injury entirely on the smaller wounds to Owens’s face and torso and not at all on the bloody slash wounds to his neck. However, the court instructed, “Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM No. 3160.) So instructed, the jury found all of the allegations of personal infliction of great bodily injury true.
The law is well-settled that “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense.” (Breverman, supra, at p. 162, quoting Flannel, supra, 25 Cal.3d at p. 684, fn. 12, italics in original.) Although Sasson and Williams argue that the slash wounds to Owens’s neck were caused by weapons with which he attempted to defend himself, the argument is entirely speculative and finds no support in the record. In short, the record negates the premise of the argument.
Even if we were to we assume, without deciding, that the court breached a sua sponte duty to instruct on simple assault, the judgment “is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (Breverman, supra, 19 Cal.4th at p. 165, citing Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal. 2d 818, 836.) Our examination of the evidence, the instructions, and the verdicts satisfies us there was no reasonable probability that the omission of sua sponte instruction on simple assault affected the outcome.
3. Prosecutor’s Argument to the Jury
Sasson and Williams argue that prosecutorial misconduct in argument to the jury requires reversal of the attempted murder convictions in count 1, the assault convictions in count 2, and the possession convictions in count 4. The Attorney General argues the contrary.
See ante, fn. 3.
First, we turn to the record. In his opening argument to the jury, the prosecutor asked jurors to use common sense to find that, even though no officer saw a weapon in Sasson’s or Williams’s hands, a weapon like the razor blade weapon found in the yard caused the kind of lacerations Owens suffered to his neck. No officer has to see a weapon, he argued, because “you have circumstantial evidence. You could look at all the facts to determine whether or not a weapon was used during this attack.”
Sasson’s and Williams’s attorneys argued the issue to the jury. Sasson’s attorney argued that there could be “a lot of reasons” for the razor blade weapon found in the yard and for the conduct of the other inmates in the yard but that the prosecutor just wanted the jury “to presume” that Sasson and Williams engaged in “an orchestrated attack” on Owens. “Not a fingerprint is taken, not a blood swab is taken, there is no test for DNA, nothing, ” Williams’s attorney noted, emphasizing that no officer ever saw any weapons in anyone’s hands.
In his closing argument to the jury, the prosecutor alluded to the razor blade weapon and to the lacerations in Owens’s neck and asked, “Do we have to prove that that weapon caused it? No.” In response to a defense objection, the court noted, “Ladies and gentlemen, again, you have been instructed that what the attorneys argue is not evidence nor is it the law, it’s their comments. You are to remember that the law is what I give you as well as the evidence as what you heard in the trial.” The prosecutor continued his argument as follows:
“We don’t have to prove to you those weapons are what did it, it could have been another razor. It could have been anything else on the yard that was used as a weapon. You could look at this injury and make a determination as to whether or not a weapon caused this injury. People’s argument is that could – a weapon consistent with that type of weapon, the weapon that was in fact found in that yard. It could have been any razor weapon, it doesn’t have to be that one. Obviously, since that was the one that was found in the yard, we would believe that that’s the one that caused this, but that’s not necessary for us to prove it.”
The crux of Sasson’s and Williams’s prosecutorial misconduct argument is that the prosecutor “misstated the law to the jury with regard to its burden of proof” since, “without proof that the weapons found were those actually used, the remaining evidence would be insufficient to prove the use of a deadly weapon by either defendant.” As the Attorney General notes, the law does not require proof of the use of a particular weapon. Sasson and Williams proffer no authority to the contrary.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.) The prosecutor’s comments that Sasson and Williams challenge fall entirely outside the prohibited realm of prosecutorial misconduct.
4. Imposition of Restitution Fines
Sasson and Williams argue that the court committed an abuse of discretion in the imposition of $10,000 restitution fines. The Attorney General argues the contrary.
By statute, the restitution fine on a felony conviction “shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000).” (§ 1202.4, subd. (b)(1).) “Consideration of a defendant’s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay.” (§ 1202.4, subd. (d).) “The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on a defendant to prove lack of ability.” (People v. Romero (1996) 43 Cal.App.4th 440, 449 (Romero).) “State prison inmates who perform assigned work are compensated for it.” (People v. Frye (1994) 21 Cal.App.4th 1483, 1487, citing §§ 2700, 2801, subd. (b); Cal. Code Regs., tit. 15, § 3040, subd. (a); Cal. Dept. of Corrections & Rehabilitation, Operations Manual, § 51120.1.)
At the sentencing hearing, neither Sasson nor Williams adduced any evidence of inability to pay but instead argued that in light of “significant life terms” with “virtually no income” the $10,000 restitution fines the probation department recommended were “redundant” since “realistically” those fines “will never be collected.” On the rationale that “putting a State Restitution Fund Fine in front of any restitution that may be owed to [Owens] doesn’t serve the matter of justice, ” both requested the imposition of restitution fines “not [in] excess of $1,000.” On appeal, both argue that “while in the SHU” neither has “the privilege of working and earning wages, ” but with commendable candor both acknowledge that the duration of one’s placement in the SHU is entirely speculative.
“Where, as here, a defendant adduces no evidence of inability to pay, the trial court should presume ability to pay, as the trial court correctly did here. Since here defendant’s ability to pay was supplied by the implied presumption, the record need not contain evidence of defendant’s ability to pay.” (Romero, supra, 43 Cal.App.4th at p. 449 .) The absence from the record of evidence of inability to pay forfeits the right to appellate review of the issue. (Avila, supra, 46 Cal.4th at p. 729.) Even if there were no forfeiture, the burden of showing an abuse of discretion is heavy. “Within the range authorized by statute, the court has wide discretion in determining the amount.” (People v. Urbano (2005) 128 Cal.App.4th 396, 406.) Sasson and Williams fail to show an abuse of discretion.
DISPOSITION
Both count 3 convictions of assault with a deadly weapon or by means of force likely to produce great bodily injury by a prisoner serving a sentence other than a life sentence (§ 4501) are reversed. The matter is remanded with the directions to the court to issue appropriately amended abstracts of judgment and to send a certified copy of each to the Department of Corrections and Rehabilitation. Sasson and Williams have no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) In all other respects, the judgment is affirmed.
WE CONCUR: Cornell, Acting P.J. Kane, J.