Opinion
E064080
04-05-2017
THE PEOPLE, Plaintiff and Respo v. STEVEN JAMES VRABEL, Defendant and Appellant.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1207244) OPINION APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed in part with directions; reversed in part and remanded for resentencing. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steven James Vrabel punched the victim while defendant was out with friends in Old Town Temecula, because his girlfriend told him the victim had assaulted her when she was in high school. Defendant was found guilty of assault by means of force likely to cause great bodily injury and the special allegation that he personally inflicted great bodily injury upon the victim.
Defendant claims on appeal as follows: (1) the trial court erred by failing to sua sponte instruct the jury that if it had a reasonable doubt as to whether defendant was guilty of the greater crime of assault with the intent to commit great bodily injury or the lesser crime of simple assault, it must give him the benefit of the doubt and convict him only of simple assault, e.g. a People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry) instruction; and (2) his conduct credits were incorrectly calculated.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an amended information with assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)). It was additionally alleged that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). He was charged with the additional crime of misdemeanor resisting arrest (§ 148, subd. (a)(1)). It was further alleged that he had suffered a prior serious and violent felony offense (§§ 667, subds. (a), (c) and (e)(1), 1170.12, subd. (c)(1)) and had served a prior prison term (667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant guilty of assault by means of force likely to cause great bodily injury and the special allegation that he personally inflicted great bodily injury on the victim. The jury found defendant not guilty of resisting arrest. Defendant admitted suffering the prior convictions.
Defendant was sentenced to six years in state prison for the assault, plus three years for the special allegation he personally inflicted great bodily injury. In addition, he was sentenced to five years on the prior conviction found true pursuant to section 667, subdivision (a). The trial court stayed the sentence on the section 667.5, subdivision (b) prior. Defendant received a total state prison sentence of 14 years. He received 211 total presentence credits pursuant to section 2933.1 consisting of 185 actual credits and 26 conduct credits for a total of 211 credits.
B. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
At around 11:00 p.m. on September 22, 2012, the victim and his girlfriend Kerry Flores were walking in Old Town Temecula. As they were walking, defendant screamed at them to stop. Defendant quickly approached them and appeared hostile. Defendant asked if the victim knew defendant's girlfriend, Mindy F. The victim acknowledged he knew Mindy F.
Defendant accused the victim of assaulting Mindy F. while they were in high school. The victim laughed and responded, "She would say that." Defendant got upset. Mindy F. approached them and tried to get defendant to calm down. The victim did not touch defendant.
Mindy F. had actually accused the victim of raping her in high school; the parties agreed prior to trial to sanitize the accusation to be an assault.
Defendant struck the victim in the face with a closed fist. The victim was thrown against a parked car and knocked out. He slid down to the ground. Defendant had to be restrained by Mindy F. and a friend. The victim was unconscious for four to 10 seconds. Flores called 911. The victim had blood all over his shirt. Defendant and Mindy F. fled the scene.
Defendant tried to get in a taxicab to leave the scene. Flores and the victim had followed them and the victim was able to block Mindy F. from leaving in the taxicab. Flores told the driver that the police were coming for defendant. Defendant and Mindy F. walked away. The victim tried to follow but started coughing up blood.
The victim denied he physically detained defendant.
A security guard from a nearby restaurant where the victim worked was able to detain defendant until police arrived. Defendant resisted being handcuffed by the police officer who responded to the scene.
Jeffrey Brice, who was with defendant that night, did not see the victim make a move toward defendant before defendant hit the victim. Brice observed the victim get back up immediately after he was punched. Brice did not recall having to restrain defendant.
An ambulance took the victim to the hospital. He remained there overnight. He was "in an incredible amount of pain."
The victim could not close his mouth properly immediately after he was hit. The victim's upper jaw was separated from the rest of his facial bones. He suffered fractures of the majority of the bones supporting the facial skeleton including eye sockets, nasal structures, cheekbones and upper jaw.
The victim underwent two facial reconstructive surgeries. The victim suffered from incredible pain after the surgeries. He had to have his jaw wired shut for almost three weeks. The victim had three titanium plates attached to his skull with 12 titanium screws to repair the damage.
2. DEFENSE
Defendant testified on his own behalf. He, Brice and Mindy F. were leaving a restaurant when she pointed out the victim, whom she said had previously assaulted her. Defendant did not initially intend to hit the victim; he only wanted to embarrass and expose the victim in front of his girlfriend and friends. The victim or Flores called Mindy F. a "slut." The victim shoved him in the chest. Defendant thought that the victim was going to push Mindy F. in the face, so he punched him in the face. The victim fell backward off the curb and fell on his buttocks. The victim got back up immediately after defendant hit him.
Defendant and Mindy F. walked away. Defendant tried to leave in a taxi but the victim grabbed him out of the taxi. Defendant was able to get away and he ran.
Defendant admitted that he had previously stabbed someone during an argument in 2002. Further, he pushed his ex-wife in the face during a fight in 2007 and was convicted of a felony. He had also suffered a felony conviction in 2000 of second degree burglary.
Timothy Stewart was a taxicab driver. On that night, defendant and Mindy F. tried to get into his cab. A man approached the cab and grabbed defendant out of the cab and pinned defendant against the cab. A woman approached the cab and told him he could not take defendant because he hit her boyfriend.
DISCUSSION
A. DEWBERRY INSTRUCTION
Defendant contends the trial court erred by failing to sua sponte instruct the jury that if it had a reasonable doubt whether defendant committed assault with force likely to cause great bodily injury or merely the lesser offense of simple assault, it could only convict him of the lesser offense. Here, CALCRIM Nos. 220 and 3517, both given by the court, instructed the jury on the correct finding of beyond a reasonable doubt on the greater and lesser included offenses.
It is well-established that a trial court must instruct on the general principles of law governing the case even absent a request. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
In Dewberry, the California Supreme Court found that a criminal defendant is entitled to the benefit of a jury's reasonable doubt as to all crimes with lesser included offenses. (Dewberry, supra, 51 Cal.2d. at pp. 556, 557.) The court held that "when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense." (Id. at p. 555.)
"It has since been held that in any case involving a lesser included offense, the trial court has a duty to give a Dewberry instruction sua sponte." (People v. Crone (1997) 54 Cal.App.4th 71, 76.) In reviewing the trial court's instructions to determine whether they are correct and sufficient, we consider the entire charge to the jury. (People v. Carrington (2009) 47 Cal.4th 145, 192.)
Here, the jury was instructed with CALCRIM No. 220 on reasonable doubt. It was advised that "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
The jury was instructed with the greater offense of assault with force likely to produce great bodily injury. It was instructed it required proof that (1) 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; (2) defendant acted willfully; (3) when defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; (4) when defendant acted he had the present ability to apply force likely to produce great bodily injury; and (5) defendant did not act in self-defense or in defense of someone else. The jury was further instructed, "The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proven."
The jury was also instructed on simple assault as a necessarily lesser included offense. This only required a finding of a willful application of force to another without the intent to inflict great bodily injury.
After argument, the trial court gave the final instructions, which included CALCRIM No. 3517. It advised the jury, "If all of you find that the defendant is not guilty of the greater charged crime, you may find him guilty of a lesser crime if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A defendant may not be convicted of both a greater and a lesser crime for the same conduct." It further instructed, "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of the lesser crime only if you found the defendant not guilty of the corresponding greater crime." Finally, the jury was instructed, "If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of the greater crime and you also agree that the People have proved beyond a reasonable doubt that he is guilty of the lesser crime, complete and sign the verdict form for not guilty of the greater crime and the verdict form for guilty of the lesser crime."
CALCRIM No. 3517 reflects and incorporates the principle of reasonable doubt as set forth in CALCRIM No. 220, and it specifically explains the Dewberry principle because it tells the jury that it cannot find a defendant guilty of a greater crime unless all the jurors agree the defendant is guilty of the greater crime beyond a reasonable doubt. Thus here, CALCRIM Nos. 220 and 3517 required it to acquit defendant of the greater offense in the event the jurors did not agree or at least some of them had a reasonable doubt whether the defendant was guilty of the greater offense. It then instructed the jurors that it had to find him guilty beyond a reasonable doubt of the lesser offense or not guilty. The jury was advised it could consider each charge in whatever order it deemed reasonable.
Defendant contends the trial court's response to the jury to their question, "If we don't all agree that [defendant] is guilty of section 245 do we have to lesson [sic] the charge to section 240?" led the jury away from the principles embodied in Dewberry. The trial court responded, "As contained in jury instruction 3517, the jury does not return a verdict on the lesser included offense in Count 01 of a PC 240 unless the jury unanimously finds that the Defendant is not guilty of the greater charge of a PC 245(a)(4)." We disagree that such response led the jury away from the principles in Dewberry. If the jury had a reasonable doubt as to the greater offense, it could not convict him of the greater offense. Further, the trial court referred to CALCRIM No. 3517, which advised the jurors they were to decide what order to consider the crimes and that defendant was guilty of the lesser offense if the jury found he was not guilty beyond a reasonable doubt on the greater offense.
CALCRIM No. 3517, along with CALCRIM No. 220, adequately described the effects of reasonable doubt on the choice between the greater and lesser included offenses. The jury was properly instructed on the Dewberry principle.
Since the jury was properly instructed, we need not consider defendant's claim that the instructional error violated his due process rights or constituted prejudicial error. --------
B. CONDUCT CREDITS
Defendant contends the trial court made an arithmetic error in calculating his conduct credits. Defendant submits that he was properly awarded 185 days of actual presentence custody credit. However, he was entitled to 27 days of presentence conduct credit rather than the 26 days awarded. Respondent concedes the error.
Defendant was entitled to conduct credits calculated under section 2933.1 at 15 percent of the actual custody credit. Fifteen percent of 185 days is 27.75. Defendant is entitled to 27 days. (See People v. Ramos (1996) 50 Cal.App.4th 810, 816-817 [no credit for partial days].) "A sentence that awards custody credits exceeding statutory limits is unauthorized, and may be corrected whenever the error is discovered." (People v. Valenti (2016) 243 Cal.App.4th 1140, 1184.) We will order the trial court to correct the conduct credits.
C. STAY OF SECTION 667.5, SUBDIVISION (B) PRIOR
We note that the trial court erroneously stayed the section 667.5, subdivision (b) prior rather than imposing or striking the prior.
"Section 667.5(b) provides for an enhancement of the prison term for a new offense of one year for each 'prior separate prison term served for any felony,' with an exception not applicable here involving a prior five-year commitment 'washout' period of freedom from custody and further felony offenses. Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
Here, the trial court found the section 667.5, subdivision (b) prior true, but stayed the sentence. The trial court should have imposed or struck the conviction. "As a result of the trial court's imposition of an unauthorized sentence, the appropriate course of action is to remand this case to the trial court for resentencing. [Citation.] Upon resentencing, the trial court retains discretion pursuant to section 1170.1, subdivision (h), either to impose the one-year enhancement provided by of [sic] section 667.5, subdivision (b), or to strike it as long as the trial court finds mitigating circumstances and states its reasons for striking." (People v. Irvin (1991) 230 Cal.App.3d 180, 192-193.)
DISPOSITION
The case is remanded to the trial court to determine whether to impose the one-year enhancement sentence pursuant to section 667.5, subdivision (b), or to strike the enhancement. The trial court is further instructed to amend the abstract of judgment to reflect that defendant was entitled to 27 days of presentence conduct credit and forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. We otherwise affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting. P. J. SLOUGH
J.