People v. Bland CA2/7 ( 2014 )

Filed 11/24/14 P. v. Bland CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B250125
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA391826)
v.
TRICKELL LEON BLAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Henry J. Hall, Judge. Affirmed as modified.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, James W.
Bilderback II and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Trickell Leon Bland (appellant) of aggravated mayhem (Pen.
Code, § 205, count 1)1 and infliction of corporal injury on a cohabitant (§ 273.5, subd.
(a), count 2). As to count 2, the jury found appellant personally inflicted great bodily
injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).)
Although appellant was also charged with mayhem (§ 203, count 3), the jury did not
reach a verdict as to that charge, which was later dismissed.
As to count 1, the trial court sentenced appellant to life in prison with the
possibility of parole. As to counts 2 and 3, the trial court sentenced appellant to nine and
eight years in prison, respectively, and stayed imposition of those sentences pursuant to
section 654. The court awarded appellant 263 days of presentence custody and conduct
credits.
On appeal, appellant raises five arguments: (1) the trial court prejudicially erred
when it refused to give a pinpoint instruction on hallucinations; (2) the trial court
prejudicially erred when it refused to give a character-evidence instruction; (3) even if the
trial court’s rulings as to the hallucinations and character-evidence instructions do not
separately constitute reversible errors, those rulings cumulatively deprived appellant of
due process and require reversal of his conviction; (4) the trial court improperly
pronounced sentence on count 3; and (5) the trial court erred in calculating appellant’s
presentence custody and conduct credits.
The People concede the trial court erred in pronouncing sentence on count 3 and in
calculating appellant’s custody and conduct credits. We agree as to both issues.
Therefore, we vacate the trial court’s oral pronouncement of sentence on count 3 and
direct the trial court to modify its June 5, 2013 order to reflect the correct amount of
appellant’s custody and conduct credits. We affirm the judgment in all other respects.
1
All further statutory references are to the Penal Code unless otherwise specified.
2
FACTUAL BACKGROUND
Prosecution Evidence
For several days leading up to the incident underlying appellant’s arrest, Beverly
Y., appellant’s girlfriend and cohabitant, and Kiana, Beverly’s adult daughter, noticed
appellant was behaving in a strange manner. They observed him repeatedly and
incoherently talking to himself, once claiming that a person was hiding in the bedroom
closet. Beverly also saw him urinate in several places throughout their apartment,
including in their stairwell, living room, and bedroom. Beverly and Kiana both thought
appellant appeared to be hallucinating and, during one conversation with Kiana, appellant
told her that “people at his work [were] drugging him.”
Throughout the night and early morning before the incident, Beverly and Kiana
called appellant’s brother several times to ask him to check on appellant. Appellant’s
brother arrived at Beverly’s apartment around 9:00 a.m. on the morning of the incident.
Beverly asked appellant’s brother to take appellant to the hospital. She then left
appellant’s brother with appellant and Kiana while she went to an appointment.
After Beverly returned from her appointment, Kiana went to the laundromat.
Before she left, Kiana saw appellant and his brother sitting in Beverly’s bedroom
watching The Planet of the Apes while Beverly cooked in the kitchen. Kiana also had a
conversation with appellant before she left for the laundromat during which appellant
apparently acted normal and was unable to recall his strange behavior from the days
before.2 Appellant’s brother departed at some point after Kiana went to the laundromat,
leaving Beverly and appellant alone in the apartment.
While Beverly was cooking in the kitchen, appellant silently approached her from
behind, grabbed her, and started biting her face. Appellant then knocked Beverly to the
ground and continued biting her face while she tried to defend herself. Terrified, Beverly
asked appellant why he was attacking her. He did not respond and continued biting her
2
Although Kiana testified about this conversation at trial, there is conflicting
evidence as to whether she told investigating officers about the conversation.
3
face for 10 to 20 seconds, pulling out her false teeth and ripping pieces of flesh from her
lips, lower jaw, cheeks, left eyebrow, and left ear. Appellant also bit Beverly’s hands as
she tried to defend herself. According to Beverly, appellant did not punch or kick her
during the attack.
Appellant eventually stopped attacking Beverly and went back to the bedroom.
Beverly then struggled down the apartment’s stairs and called 9-1-1.
Los Angeles Police Department (LAPD) Officer Ryan Mar responded to Beverly’s
call. Officer Mar, along with several other LAPD officers, entered Beverly’s apartment
to conduct a search. Once inside, Officer Mar saw large amounts of blood and pieces of
flesh scattered throughout the apartment’s entryway and kitchen. The officers found
appellant in Beverly’s bedroom lying face down on the bed and covered in blood.
Officer Mar’s partner repeatedly ordered appellant to stand up. However, appellant was
nonresponsive and appeared to be asleep. When appellant eventually woke up, the
officers placed him in custody.
After conducting a search of the bedroom, Officer Mar found narcotics
paraphernalia on the bed’s headrest, including a glass tube with a burnt end containing a
white residue and a clear vial containing a brown residue. The white residue in the glass
tube was later identified as cocaine base, and the brown residue in the clear vial was later
identified as phencyclidine, commonly known as PCP.
While escorting appellant from the apartment, Officer Mar noticed that appellant
was having difficulty walking steadily and standing on his own. At that point, LAPD
Officer Neal Oku, a drug recognition expert, arrived at the apartment, where he helped
place appellant in a patrol car. Officer Oku noticed that appellant was in a “kind of daze”
and exhibiting physical symptoms of PCP use, such as elevated body temperature and
muscle rigidity. After placing appellant in the patrol car, Officer Oku attempted to
conduct a field interview to obtain appellant’s basic identifying information. Appellant
was nonresponsive and failed to answer any of Officer Oku’s questions.
4
Later at the police station, Officer Oku evaluated appellant for recent drug use.
This evaluation generally consists of a breathalyzer test, a series of psycho-physical
examinations designed to gauge the subject’s coordination, a blood-pressure test, a heart-
rate test, and a series of questions concerning the subject’s drug use. Although appellant
completed most of the tests, he was unable to perform the psycho-physical examinations
because he could not stand or balance on his own without help.
During the evaluation, appellant spontaneously began talking about Beverly.
First, he asked Officer Oku how Beverly was doing and whether she was still alive. He
then stated: “I didn’t mean to hurt her. I thought I was fixing what had already been
done. I thought at the time if I did that, it would make me not under the influence. . . .
[¶] I thought I was under the influence of PCP. I thought I smoked it, but I didn’t. I
used cocaine.” Finally, he said: “Tell her family I didn’t mean to do it.”
Based on the evaluation and appellant’s statements, Officer Oku concluded
appellant was under the influence of PCP. Appellant’s urine sample later tested positive
for PCP, cocaine metabolite, and a class of sedatives called benzodiazepines.
Jennifer Markham, a criminalist for the LAPD, testified that PCP is a “dissociate
anesthetic,” which can work to prevent a person’s body from reacting to pain and can
cause a person to experience sensations through which the person’s body feels
disconnected from his or her mind. She also testified that PCP is known to cause its users
to hallucinate and suffer panic attacks. According to Officer Oku, when a person is under
the influence of PCP, he or she may quickly alternate between a drug-enhanced state,
with alternating periods of increased anger and violence followed by subdued lethargy
and calm awareness.
Following the attack, Beverly was rushed to the hospital where she received
emergency treatment to stabilize her breathing. After she was stabilized, Beverly
underwent emergency cosmetic surgery. According to one of her doctors, Beverly
sustained severe injuries to her lips, with her entire lower lip having been removed from
her jaw. She also sustained injuries to her left eyebrow, left ear, and both of her cheeks.
In all, Beverly had to undergo four cosmetic surgeries to repair her injuries. At the time
5
of trial, she was still experiencing numbness on the left side of her face, and she could not
control her bottom lip. Beverly testified that she will experience these difficulties for the
rest of her life.
Defense Evidence
Appellant presented no witnesses on his behalf.
PROCEDURAL BACKGROUND
Appellant was charged with aggravated mayhem in violation of section 205 (count
1); infliction of corporal injury on a cohabitant in violation of section 273.5, subdivision
(a) (count 2); and mayhem in violation of section 203 (count 3). As to count 2, the
information alleged appellant personally inflicted great bodily injury upon Beverly under
circumstances involving domestic violence within the meaning of section 12022.7,
subdivision (e).
Before appellant’s case was submitted to the jury, the trial court denied appellant’s
request for a pinpoint jury instruction on hallucinations. The trial court also refused to
give a defense-requested character-evidence instruction. The trial court did, however,
instruct the jury on voluntary intoxication and how it relates to the specific intent element
of aggravated mayhem.
The jury found appellant guilty of counts 1 and 2, and it found true the special
allegation under section 12022.7, subdivision (e). The jury did not reach a verdict as to
count 3, and the trial court subsequently dismissed that count in the furtherance of justice.
On count 1, the trial court imposed an indeterminate life sentence with the
possibility of parole. The trial court pronounced a nine-year sentence on count 2, and it
pronounced an eight-year sentence on count 3. Pursuant to section 654, the trial court
stayed imposition of appellant’s sentences on counts 2 and 3. Although the trial court
orally pronounced sentence on count 3, the court’s minute orders and appellant’s abstract
of judgment do not reflect as much.
Appellant received 263 days of presentence custody and conduct credits,
consisting of 229 days served and 34 days of good behavior.
6
DISCUSSION
I. The Trial Court Did Not Commit Reversible Error in Refusing to Give the
Requested Hallucinations and Character-Evidence Instructions
Appellant contends the trial court prejudicially erred in refusing to provide the jury
with two defense-requested instructions: (1) the hallucinations instruction set forth in
CALCRIM No. 627; and (2) the character-evidence instruction set forth in CALCRIM
No. 350. We review appellant’s claims of instructional error de novo. (People v.
Johnson (2009) 180 Cal. App. 4th 702, 707.)
A. The Requested Hallucinations Instruction
Appellant first contends the trial court committed reversible error when it denied
his request to provide the jury with a pinpoint instruction relating evidence suggesting
that he was hallucinating around the time of the attack to the specific intent element of
aggravated mayhem. Specifically, appellant argues the trial court’s refusal to instruct on
hallucinations deprived him of due process and his ability to present a meaningful
defense at trial.
i. Relevant Proceedings
At trial, appellant’s counsel requested that the court provide the jury with
CALCRIM No. 627’s hallucination instruction.3 In support of the request, counsel
3
On its face, CALCRIM No. 627 applies to the premeditation and deliberation
element of first degree murder; appellant’s counsel did not provide the court with
proposed revisions that would make the instruction applicable to the specific intent
element of aggravated mayhem.
CALCRIM No. 627 provides: “A hallucination is a perception not based on
objective reality. In other words, a person has a hallucination when that person believes
that he or she is seeing or hearing [or otherwise perceiving] something that is not actually
present or happening. [¶] You may consider evidence of hallucinations, if any, in
deciding whether the defendant acted with deliberation and premeditation. [¶] The
People have the burden of proving beyond a reasonable doubt that the defendant acted
with deliberation and premeditation. If the People have not met this burden, you must
find the defendant not guilty of first degree murder.”
7
argued the trial court was required to provide the instruction to enable the jury to
determine whether appellant formed the specific intent to permanently disfigure Beverly
in light of the evidence indicating that appellant was hallucinating around the time of the
attack.
The trial court denied the request. While acknowledging there was “reasonable”
evidence that appellant was hallucinating around the time of the attack, the court
reasoned the requested instruction would be duplicative of other instructions the court
intended to give the jury. The court stated that the specific intent element is covered
“three separate times during the course of the jury instructions.” “It’s covered in a kind
of general sense in [CALCRIM No.] 252. It’s covered in a very specific sense in
[CALCRIM No.] 800, which is the instruction that defines the crime of aggravated
mayhem, and I think probably from the defense’s perspective, it is stated quite explicitly
in . . . [CALCRIM No.] 3426, which is the voluntary intoxication instruction where it
says straight ahead that the only thing . . . that [the jury] can consider [evidence of
appellant’s voluntary intoxication] for is whether [appellant] had specific intent and re-
instructs them that if the People haven’t met the burden of proving beyond a reasonable
doubt that he did, that they have to find [appellant] not guilty of [aggravated mayhem].”
ii. The Trial Court Did Not Err in Refusing to Give the Hallucinations
Instruction
The People contend the trial court properly refused to give appellant’s requested
hallucinations instruction for two reasons: first, the instruction applies only to a charge
of premeditated murder, and it may not be modified to apply to a charge of aggravated
mayhem; and second, the instruction is duplicative of other instructions the trial court
provided to the jury. We disagree with the People on the first ground, but agree as to the
second ground. Accordingly, we conclude that the trial court did not err in refusing to
instruct on hallucinations.
The trial court could have modified CALCRIM No. 627 to apply to appellant’s
aggravated mayhem charge. “[A] defendant, upon proper request therefor, has a right to
an instruction that directs attention to evidence from a consideration of which a
8
reasonable doubt of his guilt could be engendered.” (People v. Sears (1970) 2 Cal. 3d
180, 190.) This means that “[a] defendant is entitled to an instruction relating particular
facts to any legal issue.” (Ibid.) Such an instruction tends to pinpoint the defendant’s
theory of defense and direct the jury’s attention toward evidence that may raise a
reasonable doubt as to whether the defendant committed the charged offense. (People v.
Lucero (1988) 44 Cal. 3d 1006, 1021; see also People v. Wharton (1991) 53 Cal. 3d 522,
570 [“A criminal defendant is entitled, on request, to [an] instruction ‘pinpointing’ the
theory of his defense”]; People v. Harrison (2005) 35 Cal. 4th 208, 253.) Here, appellant
requested a hallucinations instruction to pinpoint his theory of defense, which was that
evidence indicating that he was hallucinating at the time he attacked Beverly raised a
reasonable doubt as to whether he formed the specific intent to permanently disfigure her.
As modified, the hallucinations instruction would have directed the jury’s attention to
evidence supporting appellant’s theory that he lacked the specific intent to commit
aggravated mayhem. (See Sears, supra, 2 Cal.3d at p. 190; Wharton, supra, 53 Cal.3d at
p. 570.)
Nevertheless, the trial court properly refused to instruct on hallucinations. That
instruction would have been duplicative of other instructions given to the jury, especially
the voluntary intoxication instruction set forth in CALCRIM No. 3426.4 A trial court is
4
CALCRIM No. 3426 provides in relevant part: “You may consider evidence, if
any, of the defendant’s voluntary intoxication only in a limited way. You may consider
that evidence only in deciding whether the defendant acted with the specific intent to
cause a disfiguring injury as required for aggravated mayhem in violation of Penal Code
section 205 as charged in Count One of the Information. [¶] A person is voluntarily
intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug,
drink, or other substance knowing that it could produce an intoxicating effect, or
willingly assuming the risk of that effect. [¶] In connection with the charge of
aggravated mayhem in violation of Penal Code section 205 as charged in Count One of
the Information[,] the People have the burden of proving beyond a reasonable doubt that
the defendant acted with the specific intent to cause a disfiguring injury. If the People
have not met this burden, you must find the defendant not guilty of aggravated mayhem.”
(Italics in original.)
9
not required to give a requested instruction highlighting a defense theory if that
instruction “incorrectly states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial evidence. [Citation.]”
(People v. Moon (2005) 37 Cal. 4th 1, 30; see also People v. Clark (2011) 52 Cal. 4th 856,
975 [“The court properly may refuse a proposed instruction . . . when the point is covered
in another instruction”].)
“A person is guilty of aggravated mayhem when he or she unlawfully, under
circumstances manifesting extreme indifference to the physical or psychological well-
being of another person, intentionally causes permanent disability or disfigurement of
another human being or deprives a human being of a limb, organ, or member of his or her
body.” (§ 205.) Aggravated mayhem is a specific intent crime. (People v. Ferrell
(1990) 218 Cal. App. 3d 828, 833.) Thus, to be convicted of aggravated mayhem, the
defendant must have acted with the intent to maim or permanently disfigure his or her
victim. (Id. at p. 835; see also People v. Lee (1990) 220 Cal. App. 3d 320, 324-325.)
Appellant requested a hallucinations instruction to direct the jury’s attention to
evidence suggesting that he may have been hallucinating around the time he attacked
Beverly, and to inform the jury that it could consider that evidence in determining
whether the prosecution met its burden of proof with respect to the specific intent element
of aggravated mayhem. “An instruction that does no more than affirm that the
prosecution must prove a particular element of a charged offense beyond a reasonable
doubt merely duplicates the standard instructions defining the charged offense and
explaining the prosecution’s burden to prove guilt beyond a reasonable doubt.” (People
v. Bolden (2002) 29 Cal. 4th 515, 558-559.) “Accordingly, a trial court is required to give
a requested instruction relating the reasonable doubt standard of proof to a particular
The trial court also instructed the jury on reasonable doubt (CALCRIM No. 220),
the elements of aggravated mayhem (CALCRIM No. 800), and specific intent
(CALCRIM Nos. 252 & 800).
10
element of the crime charged only when the point of the instruction would not be readily
apparent to the jury from the remaining instructions.” (Id. at p. 559, italics added.)
The point of appellant’s requested instruction was adequately conveyed to the jury
through CALCRIM No. 3426’s voluntary intoxication instruction. By giving the
voluntary intoxication instruction, the trial court instructed the jury that: (1) it was
permitted to consider appellant’s voluntary intoxication in determining whether appellant
formed the specific intent to permanently disfigure Beverly; and (2) the prosecution
carried the burden of proving beyond a reasonable doubt that appellant formed such
intent.
The only evidence in the record that explains why appellant may have been
hallucinating when he attacked Beverly was his use of PCP, cocaine base, and sedatives
at some point prior to the attack. Further, appellant did not request an involuntary
intoxication instruction, and he does not contend the trial court had a sua sponte duty to
provide such an instruction. Thus, the voluntary intoxication instruction adequately
conveyed the purpose underlying appellant’s request for the hallucinations instruction.
Put another way, because the evidence establishes that any hallucinations appellant may
have suffered at the time he attacked Beverly were the result of his intoxication on PCP,
cocaine base, and sedatives, the limited inference the jury was permitted to reach based
on those hallucinations was adequately encompassed in CALCRIM No. 3426’s
instruction. (Cf. § 29.4 [“No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of his or her having been in that condition”]; see
also Bolden, supra, 29 Cal.4th at p. 559.)
In sum, because the trial court instructed the jury on voluntary intoxication,
specific intent, the elements of aggravated mayhem in general, and reasonable doubt, the
jury was properly informed on how to relate the evidence suggesting that appellant may
have been hallucinating around the time of the attack to the specific intent element of
aggravated mayhem. (See Johnson, supra, 180 Cal.App.4th at p. 707 [“In determining
whether error has been committed in giving or not giving jury instructions, [we] assume
that the jurors are intelligent persons and capable of understanding and correlating all
11
jury instructions which are given”].) As a result, appellant’s requested hallucinations
instruction was properly refused as duplicative of other instructions provided to the jury.
(See Moon, supra, 37 Cal.4th at p. 30; Bolden, supra, 29 Cal.4th at p. 559.)
In any event, any error committed by the trial court in refusing to give a pinpoint
instruction on hallucinations was harmless. If a trial court errs in refusing to provide a
requested instruction and the error does not relieve the prosecution of its burden of proof
or remove from the jury’s consideration an essential element of the charged offense, that
error is reviewed under the harmless error standard set forth in People v. Watson (1956)
46 Cal. 2d 818, 836. (People v. Larsen (2012) 205 Cal. App. 4th 810, 829-830.) Any error
resulting from the trial court’s refusal to instruct on hallucinations is subject to a Watson
analysis as the trial court properly instructed the jury on the specific intent element of
aggravated mayhem and the prosecution’s burden of proving that element beyond a
reasonable doubt; the hallucinations instruction would have served only to relate specific
facts to the specific intent element of aggravated mayhem. (See Larsen, supra, 205
Cal.App.4th at pp. 829-831.)
Under the Watson standard, we review the entire record to determine whether it
appears reasonably probable the defendant would have obtained a more favorable
outcome had the error not occurred. (Larsen, supra, 205 Cal.App.4th at p. 831.) “‘In
making that evaluation, [we] may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.’ [Citation.]” (Ibid.) We may
also consider the evidence supporting the judgment, “the instructions as a whole, the
jury’s findings, and the closing arguments of counsel.” (Ibid., citing People v. Cain
(1995) 10 Cal. 4th 1, 35-36; see, e.g., People v. Ervin (2000) 22 Cal. 4th 48, 91 [looking to
the court’s instructions and defense counsel’s arguments in applying the Watson test].)
Here, the trial court’s instructions required the jury to find beyond a reasonable
doubt that appellant formed the specific intent to permanently disfigure Beverly at the
time he attacked her. The trial court’s instructions further informed the jury that it could
12
consider evidence that appellant was voluntarily intoxicated when he attacked Beverly in
determining whether he acted with the specific intent to permanently disfigure her.
Further, the trial court did not prevent the introduction of evidence of appellant’s
hallucinations, nor did it instruct the jury that it was precluded from considering such
evidence in determining the specific intent element of aggravated mayhem. Additionally,
during closing arguments, appellant’s counsel extensively argued that appellant did not
form the specific intent to permanently disfigure Beverly due to his drug-induced
hallucinations. (See Ervin, supra, 22 Cal.4th at p. 91.) Thus, appellant’s theory that he
never formed the specific intent to permanently disfigure Beverly as a result of his drug-
induced hallucinations was expressly brought to the jury’s attention and open to the
jury’s consideration. (See Larsen, supra, 205 Cal.App.4th at pp. 831-832 [under a
Watson analysis, looking to the trial court’s instructions and defense counsel’s closing
arguments in determining whether the jury was adequately informed that it could
consider evidence of the defendant’s mental disease in deciding whether the prosecution
established beyond a reasonable doubt the requisite intent elements].)
Additionally, strong evidence supports the jury’s finding that appellant possessed
the specific intent to permanently disfigure Beverly. Evidence of a controlled attack
directed to a specific area of the victim’s body, as opposed to an attack randomly
targeting the victim’s person, along with evidence of injuries constituting mayhem is
sufficient to support a specific-intent finding under aggravated mayhem. (Ferrell, supra,
218 Cal.App.3d at p. 835.)
Appellant’s attack was short, controlled, and directed to a specific portion of
Beverly’s body. As Beverly testified, appellant’s attack lasted for approximately 10 to 20
seconds. Appellant did not attack Beverly in random outbursts; rather, his actions were
controlled, as he silently approached Beverly, attacked only her face, and promptly
returned to the bedroom once he was done. (See People v. Park (2003) 112 Cal. App. 4th
815, 821 [“It is particularly significant that defendant stopped his attack once he had
maimed [the victim’s] face: he had accomplished his objective”].) Further, appellant
used only his teeth to attack Beverly; he did not punch or kick her. (See People v.
13
Campbell (1987) 193 Cal. App. 3d 1653, 1668-1669 [evidence that the defendant used
only a brick and limited his attack to the victim’s face supported the inference that the
defendant intended to disfigure the victim’s face].) Moreover, appellant’s attack was
directed to a specific portion of Beverly’s body, as he attacked her face primarily, only
biting her hands when she used them to protect her face. (See ibid; Park, supra, 112
Cal.App.4th at p. 821.)
In light of the foregoing, it is not reasonably probable the jury would have reached
a different verdict had the trial court provided a pinpoint instruction on hallucinations.
(See Watson, supra, 46 Cal.2d at p. 836; see also Larsen, supra, 205 Cal.App.4th at p.
833.)
B. The Requested Character-Evidence Instruction
Appellant next contends the trial court prejudicially erred when it refused to
provide the jury with CALCRIM No. 350’s character-evidence instruction. Appellant
argues the trial court’s refusal to give the instruction precluded him from presenting his
defense that evidence of his character for being a nice person created a reasonable doubt
as to whether he formed the specific intent to permanently disfigure Beverly.
i. Relevant Proceedings
At trial, Beverly testified on cross-examination that appellant had always been
kind to her, and that she thought he was usually a “nice guy.” After the prosecution’s
witnesses testified, the trial court indicated that it was uncertain whether it would provide
the jury with CALCRIM No. 350’s character-evidence instruction. Appellant’s counsel
then requested the instruction, but the prosecutor objected. The prosecutor contended the
instruction was inappropriate based on the state of the evidence, arguing Beverly’s
testimony that appellant was generally a “nice guy” did not reflect on a relevant character
trait so as to warrant giving CALCRIM No. 350. The trial court agreed, stating: “On the
present state of the record, I’m not going to give [CALCRIM No.] 350.” During its
reading of instructions, the trial court did not provide the jury with CALCRIM No. 350.
The trial court did, however, instruct the jury on reasonable doubt and circumstantial
evidence.
14
ii. The Trial Court Did Not Err in Refusing to Give the Character
Evidence Instruction
CALCRIM No. 350 instructs a jury that evidence of a defendant’s particular
character trait may, by itself, create a reasonable doubt as to the defendant’s guilt.5 Upon
request, a defendant is entitled to an instruction informing the jury that opinion or
reputation evidence of one of the defendant’s good character traits offered to prove the
defendant acted in conformity with that trait should be weighed as any other fact
established, and that such evidence may be sufficient to create a reasonable doubt as to
his guilt. (People v. Bell (1875) 49 Cal. 485, 490; Evid. Code, § 1102, subd. (a); see also
People v. Jones (1954) 42 Cal. 2d 219, 224 [“Proof of the good character of the defendant
may be considered as a fact tending to rebut the truth of testimony of an incriminatory
character which is sufficient to establish the truth of the charge against him.”].)
However, the trial court has no duty to instruct on an aspect of the defense that is not
supported by substantial evidence. (People v. Bohana (2000) 84 Cal. App. 4th 360, 370.)
“Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is,
evidence that a reasonable jury could find persuasive. [Citation.]” (People v. Lewis
(2001) 25 Cal. 4th 610, 645.)
5
CALCRIM No. 350 provides: “You have heard character testimony that the
defendant (is a person/ [or] has a
good reputation for in the
community where (he/she) lives or works). [¶] Evidence of the defendant’s character for
can by itself create a reasonable
doubt [whether the defendant committed ]. However, evidence of the defendant’s
good character may be countered by evidence of (his/her) bad character for the same trait.
You must decide the meaning and importance of the character evidence. [¶] [If the
defendant’s character for certain traits has not been discussed among those who know
(him/her), you may assume that (his/her) character for those traits is good.] [¶] You may
take that testimony into consideration along with all the other evidence in deciding
whether the People have proved that the defendant is guilty beyond a reasonable doubt.”
15
The trial court did not err in refusing to instruct the jury with CALCRIM No. 350.
The only evidence of appellant’s character for being a non-violent person introduced at
trial was Beverly’s statement that, in her opinion, appellant was a “nice guy.” No other
opinion or reputation evidence of appellant’s character was introduced. Beverly’s single
statement was not sufficient to require the trial court to instruct the jury with CALCRIM
No. 350. (See Bohana, supra, 84 Cal.App.4th at p. 370; Lewis, supra, 25 Cal.4th at p.
645.)
Even if the trial court’s refusal to instruct with CALCRIM No. 350 was error, such
error was harmless. Here, the trial court’s refusal to instruct on character evidence did
not result in a misstatement of the specific intent element of aggravated mayhem or alter
the burden of proof the prosecution carries in establishing that element. Accordingly, any
error stemming from the trial court’s refusal to instruct on character evidence is subject to
a Watson harmless-error analysis. (See Larsen, supra, 205 Cal.App.4th at pp. 829-830.)
As noted above, the trial court properly instructed on the prosecution’s burden of
proving beyond a reasonable doubt every element of the aggravated mayhem charge.
The trial court also specifically instructed on the element of specific intent and clarified
that the prosecution carries the burden of proving that element beyond a reasonable
doubt. Further, the jury’s attention was directed to evidence of appellant’s character for
being a “nice” person as it related to the specific intent element of aggravated mayhem.
During closing arguments, both the prosecutor and appellant’s counsel argued as to how
the jury should consider Beverly’s testimony that she thought appellant was a nice person
in determining whether appellant formed the specific intent to permanently disfigure
Beverly. (See Larsen, supra, 205 Cal.App.4th at pp. 831-832 [under a Watson analysis, a
reviewing court may look to the trial court’s instructions and counsels’ arguments in
determining whether the jury was adequately informed that it could consider certain
evidence in deciding whether the prosecution proved beyond a reasonable doubt the
elements of the charged offenses].)
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Additionally, strong evidence supports the jury’s finding that appellant possessed
the specific intent to permanently disfigure Beverly. As discussed in greater detail above,
the evidence established that appellant’s attack was short, performed in a controlled
manner, and directed toward a specific portion of Beverly’s body. (Ferrell, supra, 218
Cal.App.3d at p. 835; See Park, supra, 112 Cal.App.4th at p. 821.) Further, there was no
dispute that appellant was under the influence of PCP at the time he attacked Beverly, a
drug that, as Officer Oku testified, can increase an individual’s tendency toward violence.
In contrast, there was minimal evidence that appellant did not form the specific intent to
commit aggravated mayhem based on his character for being a nice person: Beverly
stated once that she thought appellant was usually a nice person. (People v. Breverman
(1998) 19 Cal. 4th 142, 177.) Nevertheless, the jury was free to consider that evidence in
determining whether the prosecution satisfied its burden of proving every element of
aggravated mayhem beyond a reasonable doubt. In light of the instructions provided to
the jury, the strong evidence supporting the jury’s finding that appellant formed the
specific intent to commit aggravated mayhem, and the minimal evidence of appellant’s
character for being a nice person, it is not reasonably probable that the jury would have
reached a different verdict had the trial court instructed on character evidence. (See
Watson, supra, 46 Cal.2d at p. 836; see also Larsen, supra, 205 Cal.App.4th at p. 833.)
Next, we reject appellant’s argument that the trial court’s refusal to instruct with
CALCRIM No. 350 deprived him of his federal due process rights in such a manner as to
warrant automatic reversal of his aggravated mayhem conviction. It is well settled that
the United States Constitution does not require a trial court to instruct on circumstantial
evidence when the jury is properly instructed on reasonable doubt. (People v. Rogers
(2006) 39 Cal. 4th 826, 886, citing Holland v. United States (1954) 348 U.S. 121, 140, 75
S. Ct. 127, 99 L. Ed. 150; see also People v. Stoll (1989) 49 Cal. 3d 1136, 1161
[characterizing character evidence bearing on the issue of whether the defendant
committed the charged crimes as “circumstantial evidence”].) Here, the trial court
instructed the jury on reasonable doubt. Appellant does not challenge the propriety of
that instruction, and we find no error in the way it was given to the jury. (See Rogers,
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supra, 39 Cal.4th at pp. 886-887 [noting the United States Supreme Court’s approval of
California’s reasonable doubt instruction in Victor v. Nebraska (1994) 511 U.S. 1, 7-17,
114 S. Ct. 1239, 127 L. Ed. 2d 583].)
Finally, appellant contends he was prejudiced by the cumulative effect of the trial
court’s refusal to instruct on hallucinations and character evidence. We disagree. As we
have already discussed, the trial court did not err in refusing to provide either instruction.
Thus, there was no error to cumulate.
II. The Trial Court Erred in Orally Pronouncing Sentence on Count 3
The People concede that the trial court erred in pronouncing sentence on count 3.
We agree and vacate the trial court’s pronouncement of sentence on that count.
The jury returned guilty verdicts as to counts 1 and 2, and it returned a true finding
as to the enhancement allegation under count 2; the jury did not, however, return any
verdict as to count 3. Likewise, the jury’s verdict forms for count 3 were returned blank.
The trial court’s May 8, 2013 minute order reflects that count 3 was dismissed in the
furtherance of justice pursuant to section 1385. However, the trial court later
pronounced, but suspended imposition of, an eight-year sentence as to count 3. Because
the jury did not reach a verdict as to count 3, the trial court erred when it pronounced
sentence on that count. (See People v. Traugott (2010) 184 Cal. App. 4th 492, 500 [a
defendant cannot be convicted of a felony unless a full jury deliberates and reaches a
unanimous guilty verdict]; see also People v. Scott (1994) 9 Cal. 4th 331, 354 [“a sentence
is generally ‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case”].)
Here, the reporter’s transcript reflects that the trial court incorrectly pronounced
sentence on the dismissed count 3. However, the trial court’s June 5, 2013 minute order
reflects that appellant was not sentenced on count 3. “In a criminal case, it is the oral
pronouncement of sentence that constitutes the judgment.” (People v. Scott (2012) 203
Cal. App. 4th 1303, 1324, italics in original.) Therefore, we vacate the trial court’s
incorrect oral pronouncement of sentence on count 3.
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III. The Trial Court Erred in Calculating Appellant’s Presentence Custody and
Conduct Credits
The People also concede that the trial court erred in calculating appellant’s
presentence custody and conduct credits. We therefore direct the trial court to modify its
June 5, 2013 order and correct appellant’s abstract of judgment to reflect the proper
amount of credits appellant is entitled to.
At the sentencing hearing, the trial court awarded appellant a total of 263 days of
credits, consisting of 229 actual days for presentence custody plus 34 days for good
conduct. This was error. Appellant was first taken into custody on December 13, 2011,
where he remained for 201 days until he was released on bail on June 30, 2012. He was
later remanded on May 8, 2013, where he remained in custody for 29 more days until
sentencing on June 5, 2013. Therefore, at the time of sentencing, appellant had accrued
230 days of presentence custody credits.
Under section 2933.1, appellant accrued conduct credits at the rate of 15 percent
of the 230 days he served in presentence custody, which totals 34 days. (See People v.
Ramos (1996) 50 Cal. App. 4th 810 [trial court may not round conduct credits up to a
number that would fall between 15 and 16 percent of the number of days served in
presentence custody].) Thus, appellant was entitled to 264 days of presentence custody
and conduct credits.
DISPOSITION
We vacate the trial court’s oral pronouncement of sentence on count 3. The trial
court is directed to modify its June 5, 2013 order and correct appellant’s abstract of
judgment to reflect that appellant was awarded 264 days of presentence custody and
conduct credits. The trial court is requested to forward corrected certified copies of
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appellant’s abstract of judgment to the Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
WOODS, J.
We concur:
PERLUSS, P. J. SEGAL, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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