People v. Turcios CA1/1 ( 2021 )

Filed 12/9/21 P. v. Turcios CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A159079
v.
ROBERTO RENE TURCIOS, (Contra Costa County
Super. Ct. No. 5-191194-0)
Defendant and Appellant.
Defendant Roberto Turcios had an altercation with his former romantic
partner (Doe 1) and her 16-year-old daughter (Doe 2). During the incident,
he struck Doe 2 on the head with a baseball bat, causing her to bleed. A jury
convicted him of various offenses related to the altercation, including assault
with a deadly weapon under Penal Code section 245, subdivision (a)(1), and
another offense with an accompanying enhancement for personal use of a
deadly or dangerous weapon under Penal Code section 12022,
subdivision (b)(1).1 He was sentenced to three years in prison.
On appeal, Turcios’s sole contention is that the trial court erred by
instructing the jury in a manner that allowed it to conclude that the baseball
We shall refer collectively to this assault conviction and enhancement
1
as the “weapons conviction and enhancement.” All further statutory
references are to the Penal Code.
1
bat was an inherently deadly weapon, requiring reversal of the weapons
conviction and enhancement. We agree with the parties that the court’s
instructions were erroneous under People v. Aledamat (2019) 8 Cal.5th 1(Aledamat), which was decided shortly before the case was submitted to the
jury. We also conclude that the error was prejudicial, although not for any
reason advanced by Turcios. Accordingly, we reverse the weapons conviction
and enhancement and remand for further proceedings.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Turcios lived with Doe 1 and Doe 2 in their Pittsburg home for about
10 years before he and Doe 1 ended their relationship. Doe 1 obtained a
restraining order against him a few months before the altercation, which
occurred on July 1, 2018.
Doe 2 testified that on that day, she was in her bedroom with her
boyfriend when she heard noises and saw her mother’s bedroom door close.
Doe 2 suspected that Turcios had entered the house and gone into her
mother’s bedroom, where Doe 1 was lying in bed recovering from a back
injury. Doe 2 went to her mother’s bedroom and saw Turcios lying on the bed
next to Doe 1. Concerned, Doe 2 asked her mother if she was all right, but
there was no response. Doe 2 left her mother’s bedroom to call a friend for
help, but she then heard Doe 1 scream her name.
According to Doe 1, Turcios, who appeared to be drunk, had entered her
bedroom, lay down on the bed with her, and told her he loved her. He then
“began to squeeze [her] neck” and told her he was going to kill her, at which
point she yelled for Doe 2. In contrast to Doe 2, Doe 1 did not recall her
daughter being in the room before Doe 1 yelled for help.
2
Doe 2 testified that after she heard her mother yell for help, she
grabbed a wooden baseball bat, ran into her mother’s bedroom, and yelled at
Turcios to leave. Doe 2’s boyfriend followed her and stood by the door.
Turcios kicked Doe 2, and she dropped the bat without having swung it.
Turcios picked up the bat and, while still on the bed, kicked Doe 2 a second
time. He then hit Doe 2 in the back of the head with the bat. Doe 2 sat down
on the bed, and Turcios hit her again with the bat, this time on her forehead.
Doe 2 felt herself bleeding, started to scream, and left the bedroom.
Doe 1 testified that after Turcios hit her daughter, she “grabbed him by
the shirt” and told Doe 2’s boyfriend to call the police. Turcios stated, “You
know what is going to happen if you call the police,” which Doe 1 testified she
interpreted as a threat because “[h]e always used to say that if we ever called
the police, he was going to kill us.” Turcios then hit her arm with the
baseball bat, bruising it, before leaving the room. Doe 1 testified that she
also injured her knee during the incident, although she was not sure whether
Turcios hit her on the knee with the bat as well.
According to Doe 2’s boyfriend, after Doe 2 left the bedroom Doe 1 “had
[Turcios] in a choke hold,” and the boyfriend got onto the bed and punched
Turcios in the face. The boyfriend then rose to call the police, at which point
Turcios “held the bat over . . . Doe 1’s head” and said, “If you call the police,
I’m going to kill her.” The boyfriend testified that in an attempt to calm
Turcios, he told the other man that he would not call the police and put down
his phone.
Doe 2 and her boyfriend eventually went outside, and Turcios and
Doe 1 exited the house shortly afterward. Doe 2’s boyfriend said, referring to
Doe 2, “She’s bleeding,” and Turcios responded, “I didn’t hit her; I did not
touch her.” He then quickly drove away from the scene. Doe 2 was
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eventually taken by ambulance to a hospital and received two stitches to the
front of her head.
A year later, Turcios was charged by information with seven felonies
and several accompanying enhancements. The offenses involving Doe 1 were
infliction of corporal injury to an intimate partner, assault with a deadly
weapon, criminal threats, and dissuading a witness by force or threat. The
offenses involving Doe 2 were child abuse under conditions likely to produce
great bodily injury, corporal injury to a child, and assault with a deadly
weapon. Turcios was also charged with the misdemeanor of disobeying a
domestic relations court order.2
The jury convicted Turcios of the counts of assault with a deadly
weapon against Doe 2 and corporal injury to a child, including an
enhancement accompanying the latter charge for personal use of a deadly or
dangerous weapon under section 12022, subdivision (b)(1), but it found not
true enhancements for causing great bodily injury that were alleged as to
both crimes. The jury also convicted Turcios of the misdemeanor charge. He
was acquitted of the remaining felonies, although the jury found him guilty of
the lesser included misdemeanors against Doe 1 of battery of an intimate
partner and simple assault, and the lesser included misdemeanor against
2 The felony charges were brought under sections 273.5, subdivision (a)
(corporal injury to intimate partner), 245, subdivision (a)(1) (both assault
charges), 422 (criminal threats), 136.1 (witness dissuasion), 273a,
subdivision (a) (child abuse), and 273d, subdivision (a) (corporal injury to
child). The misdemeanor charge was brought under section 273.6,
subdivision (a).
4
Doe 2 of child abuse under circumstances not likely to produce great bodily
injury.3
The trial court denied probation and sentenced Turcios to the low term
of two years for corporal injury to a child and a consecutive term of one year
for the use of a deadly or dangerous weapon. The court also imposed
concurrent terms of 364 days in jail each for the battery of Doe 1 and the
violation of a domestic relations order and stayed terms for the remaining
convictions under section 654. Thus, the total unstayed term was three years
in prison.
II.
DISCUSSION
As we have said, Turcios’s only contention on appeal is that the trial
court prejudicially erred in instructing the jury, a claim we review de novo.
(People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) Turcios maintains
that as a result of the instructional error we must reverse the weapons
conviction and enhancement. The Attorney General concedes that error
occurred but argues that it was harmless. We conclude that reversal is
required.
1. Additional facts
Under section 245, subdivision (a)(l), “commit[ting] an assault upon the
person of another with a deadly weapon or instrument other than a firearm”
is a felony offense. The trial court instructed the jury under CALCRIM
No. 875 on the elements of this crime. The instruction informed the jury that
a conviction required the prosecution to prove beyond a reasonable doubt that
Turcios acted with a deadly weapon. Jurors were instructed, consistent with
3The convictions for the lesser included offenses were under
sections 243, subdivision (e)(1) (battery), 240 (simple assault), and 273a,
subdivision (b) (child abuse).
5
governing law, that “[a] deadly weapon other than a firearm is any object,
instrument, or weapon that is inherently deadly or one that is used in such a
way that it is capable of causing and likely to cause death or great bodily
injury.” (See People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029; see also In
re B.M. (2018) 6 Cal.5th 528, 530.)
A similar instruction was given regarding the enhancement for
personal use of a deadly or dangerous weapon alleged in connection with the
count of corporal injury to a child. Under section 12022, subdivision (b)(1),
“personally us[ing] a deadly or dangerous weapon in the commission of a
felony” is punishable by an additional year in custody. The jury was
instructed under CALCRIM No. 3145 that the enhancement could be found
true only if the prosecution proved beyond a reasonable doubt that Turcios
personally used a deadly or dangerous weapon, which was defined as “any
object, instrument, or weapon that is inherently deadly [or dangerous] or one
that is used in such a way that it is capable of causing and likely to cause
death or great bodily injury.”4 The instruction further directed the jury that
“[i]n deciding whether an object is a deadly weapon,” it was to “consider all
the surrounding circumstances, including when and where the object was
possessed[,] [and any other evidence that indicates whether the object would
be used for a dangerous, rather than a harmless, purpose].” Neither of the
instructions, however, defined the meaning of an “inherently” deadly or
dangerous weapon.
4 Although the weapons conviction and enhancement differ in that the
former requires use of a “deadly weapon” and the latter requires use of a
“deadly or dangerous weapon,” the same principle applies that a weapon can
qualify as such based on either its inherent nature or the way in which it is
used. (Aledamat, supra, 8 Cal.5th at p. 6, fn. 2.)
6
2. Discussion
Turcios argues that CALCRIM Nos. 875 and 3145 were legally
erroneous because they each presented both an impermissible theory and a
permissible theory for a finding against him. The impermissible theory
allowed the jury to find him guilty by concluding that the baseball bat was an
inherently deadly weapon as a matter of law. (See Aledamat, supra,
8 Cal.5th at pp. 6–7.) The permissible theory allowed the jury to find him
guilty by concluding that the baseball bat was deadly because of the way he
used it. (See id. at p. 7.) An instruction that provides both a valid and
invalid theory for conviction is prejudicial unless it did not affect the verdict
beyond a reasonable doubt. (Id. at pp. 9–11; see Chapman v. California
(1967) 386 U.S. 18, 24.)
Our analysis relies on Aledamat, which also involved CALCRIM
Nos. 875 and 3145.5 (Aledamat, supra, 8 Cal.5th at pp. 4–5.) In Aledamat,
the parties conceded that those instructions were erroneous because they
permitted the jury to find that the weapon at issue, a box cutter, was either
an inherently dangerous weapon or used in a way likely to cause great bodily
injury or death. (Id. at pp. 4–6.) Because a box cutter is not an inherently
dangerous weapon as a matter of law, the instructions thus presented an
incorrect and a correct theory by which the jury could find that the
implement was a deadly weapon. (Id. at pp. 6–7.)
The Attorney General concedes that a baseball bat is not an inherently
dangerous weapon because it “can be, and usually is, used for innocent
purposes.” (Aledamat, supra, 8 Cal.5th at p. 6; People v. King (2006)
38 Cal.4th 617, 624.) Thus, just as it was error for the trial court to give
5 Aledamat was issued on August 26, 2019. The instructions here were
read to the jury on October 1, 2019.
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instructions in Aledamat that allowed the jury to decide that a box cutter was
an inherently deadly weapon, it was error for the trial court to give
instructions here that allowed the jury to decide that the baseball bat was an
inherently deadly weapon.
Aledamat then turned to the issue of which standard for assessing
prejudice applies. (Aledamat, supra, 8 Cal.5th at p. 9.) The Supreme Court
first explained that the theory for finding that the box cutter was a deadly
weapon because it was inherently dangerous was not merely unsupported by
the evidence but “legally erroneous—i.e., of a kind the jury is not equipped to
detect.” (Id. at pp. 7–8.) This was so because CALCRIM Nos. 875 and 3145
“did not define what ‘inherently deadly’ meant, [and] the jury would not be
equipped to know that, contrary to what the instruction suggested, a box
cutter is not an inherently deadly weapon” as a matter of law. (Aledamat, at
p. 8.) The Court held that when a trial court gives instructions that provide
both a valid and a legally erroneous theory to convict, “[t]he reviewing court
must reverse the conviction unless, after examining the entire cause,
including the evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt” under the
Chapman standard for federal constitutional error. (Id. at p. 3.)
We conclude that the instructional error requires reversal under this
standard, albeit for a reason that neither party addresses: the jury’s verdict
on the child-abuse count. Turcios was charged under section 273a,
subdivision (a), which authorizes imprisonment of “[a]ny person who, under
circumstances or conditions likely to produce great bodily harm or death,
willfully causes or permits any child to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of that child to be injured, or
8
willfully causes or permits that child to be placed in a situation where [the
child’s] person or health is endangered.” (Italics added.) The jury acquitted
Turcios of that crime, instead convicting him of the lesser included offense
under subdivision (b) of the same statute, which makes it a misdemeanor to
engage in the identical four types of conduct when done “under circumstances
or conditions other than those likely to produce great bodily harm or death.”
(Italics added.)
The only difference between the greater offense under section 273a,
subdivision (a), and lesser included offense under section 273a,
subdivision (b), is whether the prohibited conduct “ ‘was under circumstances
or conditions likely to produce great bodily harm or death,’ i.e., under
conditions ‘in which the probability of serious injury is great.’ ” (People v.
Sargent (1999) 19 Cal.4th 1206, 1223.) Indeed, the jury was instructed that
“the difference between Count Four [the charge under section 273a,
subdivision (a)] and the lesser is that Count Four requires circumstance[s]
likely to produce great bodily harm or death, whereas the lesser[]included
[offense] does not have that requirement, only that it be unjustifiable
physical pain or mental suffering.” Thus, by returning a verdict on the lesser
included offense, the jury necessarily found that Turcios did not inflict abuse
on Doe 2 under circumstances or conditions likely to produce great bodily
injury.
In light of this finding, we cannot rule out the possibility that the jury
relied on the impermissible theory for convicting Turcios of the weapons
charge and enhancement, i.e., that the baseball bat was an inherently
dangerous weapon as a matter of law. The jury was instructed under the
permissible theory that it could find the baseball bat was a deadly weapon if
it was “used in such a way that it is capable of causing and likely to cause
9
death or great bodily injury.” But the only identified act to support the child-
abuse charge was the hitting of Doe 2 with the baseball bat, which was also
the basis for the other charges involving Doe 2. Since the jury concluded that
the child abuse was committed under circumstances that were not likely to
produce great bodily injury, it is difficult to see how it could have also
concluded that the baseball bat was used in a way likely to cause great bodily
injury, as required under the permissible theory to support the weapons
conviction and enhancement.6 Even if such findings could be reconciled with
each other under some theoretical version of the facts, the jury’s rejection of
the conclusion that Turcios abused Doe 2 under circumstances or conditions
likely to produce great bodily harm or death creates a reasonable possibility
that the weapons conviction and enhancement were based, not on the
permissible theory that the baseball bat was used in a deadly manner, but
instead on the impermissible theory that the baseball bat was inherently
dangerous.
In arguing that the instructional error was harmless, the Attorney
General overlooks the jury’s verdict on the child-abuse charge and focuses on
the facts that Turcios was acquitted of the charge of assault with a deadly
weapon against Doe 1 and found guilty only of the lesser included offense of
simple assault under section 240. The only difference between the two
6 The converse would not necessarily be true, had Turcios been
convicted of felony child abuse but acquitted of assault with a deadly weapon.
For example, in People v. Clark (2011) 201 Cal.App.4th 235, the Court of
Appeal concluded that there was “nothing inconsistent” about the fact the
defendant was acquitted of an assault count requiring the use of force likely
to cause great bodily injury yet convicted of felony child abuse. (Id. at p. 252.)
As the decision explained, the use of force is but one circumstance or
condition to be evaluated in determining whether injury was willfully
inflicted on a child under circumstances “likely to produce great bodily harm
or death” under section 273a, subdivision (a). (Clark, at p. 243.)
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offenses is whether the assault was committed with a deadly weapon. (See
§§ 240, 245, subd. (a)(1).) Thus, according to the Attorney General, because
the prosecutor argued that Turcios was guilty of assault with a deadly
weapon based on his hitting Doe 1 with the baseball bat, the jury must have
concluded that the baseball bat was not a deadly weapon in order to return a
verdict of simple assault. In turn, says the Attorney General, the jury must
have concluded that the baseball bat was not an inherently deadly weapon,
meaning the weapons conviction and enhancement were not based on the
impermissible theory but instead on the permissible theory of how the bat
was used against Doe 2.
This argument is unpersuasive because conduct other than hitting
Doe 1 with the baseball bat could have supported the verdict of simple
assault. Specifically, evidence was presented that Turcios choked Doe 1.
Thus, the jury could have found that Turcios never hit Doe 1 with the
baseball bat but still committed assault by choking her.7 We are not
persuaded otherwise just because the prosecutor argued that hitting Doe 1
with the baseball bat was the basis of the assault charge. Of course, the jury
needed to conclude that Turcios hit Doe 1 with the baseball bat if it was going
to find him guilty of assault with a deadly weapon on her. But the
prosecutor’s omission of an argument about how the jury might reach a
conviction on the lesser included offense of simple assault would not have
necessarily conveyed that the act of hitting Doe 1 with the baseball bat was
the only possible basis for any assault conviction.8
7Although we do not detail it, there was significant evidence calling
into question the credibility of both Doe 1 and Doe 2’s boyfriend, a possible
explanation for the jury’s verdicts on the counts involving Doe 1.
8Indeed, although the prosecutor argued that the hitting of Doe 1 with
the baseball bat also supported the charge of corporal injury to an intimate
11
We acknowledge that the prosecutor never argued that the jury could
convict Turcios on the weapons charge or enhancement if it found the
baseball bat was an inherently deadly weapon. To the contrary, the
prosecutor urged the jury to conclude that the baseball bat was a deadly
weapon based on the manner in which Turcios used it. Absent the verdict on
the child-abuse charge, we might agree that this circumstance, in
combination with the evidence and arguments as a whole, “leave[s] no
reasonable doubt that the jury made the [necessary] findings.” (Aledamat,
supra, 8 Cal.5th at p. 10.) But because the jury found that Turcios assaulted
Doe 2 with the baseball bat yet also found that he committed child abuse
under circumstances not likely to produce great bodily harm, we cannot
conclude beyond a reasonable doubt that the jury found the baseball bat was
used in a way likely to cause great bodily injury.
Finally, we consider the proper disposition. Turcios argues that the
weapons conviction should be reversed and the weapons enhancement should
be vacated. The Attorney General does not address the issue. We disagree
that a full reversal of the conviction is warranted, as the error affects only the
element of use of a deadly weapon and there can be no dispute that the
evidence supports the lesser included offense of simple assault. (See People v.
Edwards (1985) 39 Cal.3d 107, 118; People v. Moretto (1994) 21 Cal.App.4th
1269, 1278; see also § 1260.) Accordingly, we reverse the weapons conviction,
vacate the weapons enhancement, and remand with directions that if the
partner, he told the jury to find true the weapons enhancement for that
charge “[i]f you believe he used a bat when he did that.” (Italics added.) This
suggested that some conduct other than hitting Doe 1 with the bat could also
support a conviction of corporal injury to an intimate partner and, in turn,
the lesser included offense of misdemeanor battery of an intimate partner of
which Turcios was ultimately convicted.
12
People do not elect to retry Turcios for assault with a deadly weapon and the
enhancement for personal use of a deadly or dangerous weapon attached to
the conviction of corporal injury to a child, the judgment shall be modified to
reflect a conviction of simple assault under section 240.
III.
DISPOSITION
The conviction for assault with a deadly weapon (count 6) is reversed,
and the enhancement for personal use of a deadly or dangerous weapon
(count 5) is vacated. If the People do not elect to retry Turcios for this crime
and enhancement, the judgment shall be modified to reflect his conviction on
count 6 for simple assault under Penal Code section 240 and to strike the
enhancement on count 5. In either case, Turcios shall receive a new
sentencing hearing. In all other respects, the judgment is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
People v. Turcios A159079
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