People v. Lopez CA5 ( 2024 )

Filed 10/14/24 P. v. Lopez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F087183
Plaintiff and Respondent,
(Super. Ct. No. DF017520A)
v.
CRISTIAN CORTES LOPEZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine
Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Christian Cortes Lopez appeals his convictions on one count of assault
with a deadly weapon by a prisoner (Pen. Code,1 § 4501, subd. (a); count 1) and one
count of assault by means of force likely to produce great bodily injury by a prisoner
(§ 4501, subd. (b); count 2). Appellant contends there was insufficient evidence to
support his conviction for count 1 and that he could not be properly convicted of both
counts 1 and 2 under section 954. For the reasons set forth below, we modify the
judgment and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2023, appellant was charged by information with two charges and multiple
related enhancements. Relevant to the issues raised in this appeal, in count 1, the People
alleged appellant “and Luis Sanchez, did willfully and unlawfully, while confined in the
California Department of Corrections and Rehabilitation—[North Kern State Prison],
commit an assault upon the [victim] with a deadly weapon or instrument, in violation of
Penal Code section 4501[, subdivision (a)], a felony.” (Some capitalization omitted.) In
count 2, the People similarly alleged appellant “and Luis Sanchez, did willfully and
unlawfully, while confined in the California Department of Corrections and
Rehabilitation—[North Kern State Prison], commit an assault upon the [victim] by any
means of force likely to produce great bodily injury, in violation of Penal Code
section 4501[, subdivision (b)], a felony.” (Some capitalization omitted.) Appellant was
eventually tried before a jury on both counts.
Correctional Officer Jose Casillas witnessed the alleged assault and testified
regarding his observations. Casillas explained he was the only officer in the area and
distributing mail when he heard a scream coming from the second floor. Casillas looked
toward the sound and noticed a fight occurring. Two inmates, appellant and Sanchez,
1 Undesignated statutory references are to the Penal Code.
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were striking a third inmate. The inmates were using closed fists and striking multiple
blows to the third inmate’s head and facial area. Casillas could not see any weapons.
The victim struck back and then fled toward nearby stairs. Casillas announced a
“code one” on his radio to summon backup and ordered all inmates in the area to get into
a prone position. As other inmates complied, appellant and Sanchez continued to chase
their victim who was running toward Casillas, having come downstairs to the lower level.
Casillas utilized his pepper spray on the victim and appellant, causing appellant to “g[e]t
down.” Sanchez did not stop, and Casillas used his pepper spray a second time.
On cross-examination, Casillas stated that appellant and Sanchez caught up to the
victim at the bottom of the stairs leading to the area where Casillas was standing and
began striking the victim in the “facial and upper torso area” with balled-up fists. Again,
Casillas did not see any weapons. The entire incident lasted approximately 20 seconds.
During that time, Casillas did not see either appellant or Sanchez with a weapon and did
not see them make any specific stabbing motions. However, he did notice blood on the
victim.
Correctional Officer Omar Herrera conducted a further investigation and search of
the area where the assault occurred and testified regarding those acts. In that
investigation, Herrera did not discover or collect any weapons. Similarly, when appellant
and Sanchez were searched, no weapons were found. Herrera explained that failing to
find a weapon is a common occurrence in prison assaults given the dorm-style setting of
the area and the number of inmates to whom weapons may be passed during an incident.
Prison Nurse Paul Enriquez next testified to the injuries suffered by the victim.
Enriquez catalogued 18 injuries to the victim, ranging from scratches and abrasions to
puncture wounds. Relevant to this appeal, the victim suffered three puncture wounds to
the front of their body and 10 puncture wounds to their back. The wounds in this case
were relatively small, “[p]robably the size of a pen,” but caused substantial bleeding.
Enriquez explained that a puncture wound is not the type that would result from a punch,
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but rather covers wounds that pierce the skin—“anything from a pinpoint needle, or
sometimes a stab wound.” Based on these wounds, the victim was eventually sent out of
the prison for a higher level of care.
Correctional Officer Jacob Valdez provided additional testimony regarding the
victim’s wounds. Valdez investigated the incident and took pictures of the injuries. He
noted that the injuries to the victim’s arms and torso were circular, consistent with a
cylindrical weapon used in prison stabbings.
Finally, Correctional Investigator Romero Ayala Angeles confirmed that no
weapons related to the assault were found and that he did not recall or document finding
blood on the hands of appellant or Sanchez. However, Angeles explained that a search
done in response to the incident resulted in the discovery of at least 10 prisoner-made
weapons and that such items were found on a nearly daily basis.
Following the close of evidence, appellant brought a motion for acquittal under
section 1118.1. In that motion, appellant argued the evidence failed to show great bodily
injury and that appellant had a weapon. In opposing the motion with respect to count 2,
the prosecutor claimed sufficient evidence existed to proceed under a single attack theory,
explaining that “given the number of strikes, the location of those strikes, and the fact
that they are delivered in a rapid manner, and after the victim’s attempt to flee, it’s an
ongoing, prolonged attack, all of which amounts to an assault that is done with force
likely to cause great bodily injury.” The court ultimately denied the motion.
The court then proceeded through jury instructions and closing arguments.
Relevant to this appeal, the court did not give an unanimity instruction to the jury.2 The
prosecutor argued in line with the single assault theory during closing argument,
including: arguing that the attack began at the top of the stairs and “doesn’t end until the
2 A standard instruction for this situation is CALJIC No. 17.01, which instructs the jury
that when the prosecution has introduced evidence showing more than one act upon which a
conviction can be had, all jurors must agree the defendant committed the same act or omission.
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officer has to use OC spray, pepper spray”; describing the victim’s injuries as “on both
sides of his body, as well as on his back, from that moment when he’s ultimately
attacked, trying to run away at the bottom of the stairs”; explaining the two charges by
saying “there are two separate counts, but overall, we’re talking about the same incident”;
and arguing that there was force likely to cause great bodily injury by explaining “the
assault … started in the upper left tier area. It continues across the tier. It continues
down the stairs. It continues to the bottom.… It’s all of it altogether. It’s the repeated
strikes and stabs at the victim .… All the more likely to cause someone great bodily
injury.”
Ultimately, the jury convicted appellant on counts 1 and 2, but did not reach a
decision on the great bodily injury enhancements. Following further proceedings, the
court sentenced appellant to the upper term for both counts but stayed the sentence on
count 2 under section 654. This appeal timely followed.
DISCUSSION
Appellant challenges the sufficiency of the evidence supporting his conviction on
count 1 and the fact he was convicted of both counts 1 and 2. We consider each argument
in turn.
Sufficient Evidence Supports the Conviction on Count 1
Appellant claims in his first argument that insufficient evidence supports the jury’s
conclusion that he possessed and utilized a deadly weapon in the attack. Appellant’s
arguments do not contend that no deadly weapon was used, but rather focus on the
alleged lack of evidence supporting a claim appellant used a weapon.
Standard of Review and Applicable Law
Count 1 in this case alleged appellant violated section 4501, subdivision (a), which
provides that “every person confined in the state prison of this state who commits an
assault upon the person of another with a deadly weapon or instrument shall be guilty of a
felony .…”
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On a challenge to the sufficiency of evidence supporting a conviction or to support
the denial of a section 1118.1 motion, we “ ‘ “examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—
evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on circumstantial evidence .…’ ” (People v.
Houston (2012) 54 Cal.4th 1186, 1215.) “ ‘ “ ‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances might
also be reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.’ ” ’ ” (People v. Holt (1997) 15 Cal.4th 619, 668.) This standard is high,
requiring an appellate court to “accept logical inferences that the jury might have drawn
from the evidence even if the court would have concluded otherwise.” (People v. Combs
(2004) 34 Cal.4th 821, 849.)
Sufficient Evidence Support’s Appellant’s Conviction on Count 1
Appellant contends there is insufficient evidence to demonstrate that he used a
deadly weapon in the attack. Appellant notes in his argument that the evidence generally
shows two attackers, neither of whom were specifically seen engaging in stabbing
motions and neither of whom were found with a weapon. Appellant contends that either
surmise or conjecture is required to conclude appellant actually used a deadly weapon in
the attack. We do not agree.
Although the evidence does not directly confirm who possessed and used a deadly
weapon in the attack, there remains circumstantial evidence regarding the nature of the
fight and the wounds sustained that create a reasonable logical inference that both
appellant and Sanchez were in possession of and used a deadly weapon in the attack. As
Casillas testified, the fight was very short in duration, approximately 20 seconds, despite
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spanning two locations. Both appellant and Sanchez were seen striking the victim in both
locations and engaged in strikes both when the victim was facing and fleeing from them.
Testimony from Enriquez and Valdez shows that despite the short duration of the fight,
the victim suffered 13 puncture wounds, with wounds occurring on both the left and right
sides of their body. The testimony from Herrera, Valdez, and Angeles confirms that
prisoner-made weapons are regularly located in the prison, but often not found after
attacks, and would make puncture wounds like those found on the victim. Taken
together, the number, locations, and type of injuries the victim suffered in a short span of
time are sufficient evidence of an attack by two armed individuals and support appellant’s
conviction. Had the puncture wounds been minimal in number or if blood was found on
Sanchez but not appellant, any inference of both perpetrators being armed would have
been minimized. But as noted above, we will not reverse a conviction if the facts justify
the necessary findings, even if “ ‘ “ ‘the circumstances might also be reasonably
reconciled with a contrary finding .…’ ” ’ ” (People v. Holt, supra, 15 Cal.4th at p. 668.)
Appellant Was Improperly Convicted of Both Counts 1 and 2
Appellant alleges in his second argument that he was improperly convicted of two
offenses that cover the same crime and were based on the same conduct. Appellant’s
argument relies upon section 954, the guidance set forth in People v. Aguayo (2022)
13 Cal.5th 974 (Aguayo), and the general parallels between the crime described in
section 4501 and the crime of assault described in section 245.
Standard of Review and Applicable Law
Under section 954: “ ‘An accusatory pleading may charge two or more different
offenses connected together in their commission, or different statements of the same
offense or two or more different offenses of the same class of crimes or offenses, under
separate counts .… The prosecution is not required to elect between the different
offenses or counts set forth in the accusatory pleading, but the defendant may be
convicted of any number of the offenses charged, and each offense of which the
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defendant is convicted must be stated in the verdict or the finding of the court .…’ ”
(People v. Vidana (2016) 1 Cal.5th 632, 649, italics omitted.) The statute thus
“ ‘authorizes multiple convictions for different or distinct offenses, but does not permit
multiple convictions for a different statement of the same offense when it is based on the
same act or course of conduct.’ ” (Id. at p. 650.)
In Aguayo, our Supreme Court considered whether section 245, subdivision (a)(1),
criminalizing assault with a deadly weapon, and section 245, subdivision (a)(4),
criminalizing assault by means of force likely to produce great bodily injury, constituted
different statements of the same offence and, in that case, whether Aguayo could be
convicted of both charges where the evidence showed a physical altercation where
Aguayo “hit her father with a bicycle chain and lock.” (Aguayo, supra, 13 Cal.5th at
p. 979.) Relying on the language of the statute and legislative history showing that both
types of assault were originally part of the same offense until, in 2011, the Legislature
split them in order to make convictions easier to classify for purposes of classifying prior
offenses during sentencing, the court found that these were two formulations of the same
offense and not different offenses for the purpose of dual convictions under section 954.
(Aguayo, at pp. 981–993.) It is well settled that the “ ‘elements of the offenses set forth
in sections 4501 and 245, subdivision (a), are identical in all respects except that
section 4501 requires, as an additional element, that the defendant be a prisoner confined
in a state prison.’ ” (People v. Abelino (2021) 62 Cal.App.5th 563, 582, fn. 16.)3
Under the Sixth Amendment to the United States Constitution, two convictions for
the same offense which are based on the same course of conduct cannot be justified by
evidence which could show multiple violations occurred unless the jury necessarily made
such a finding. (Aguayo, supra, 13 Cal.5th at pp. 993–994.) “Our standard of review is
3 In this appeal, the People do not contest that subdivisions (a) and (b) of section 4501
constitute alternative descriptions of the same offense.
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de novo as to those parts of the appeal that raise questions of law and mixed questions of
law and fact. ‘In the constitutional realm … [the United States Supreme Court has] often
held that the role of appellate courts “in marking out the limits of [a] standard through the
process of case-by-case adjudication” favors de novo review even when answering a
mixed question primarily involves plunging into a factual record.’ ” (People v. Reneaux
(2020) 50 Cal.App.5th 852, 863.)
The Record Does Not Support Two Separate Convictions
Relying on Aguayo, appellant contends he was improperly convicted twice of the
same offense based on a single course of conduct. The People do not challenge the
application of Aguayo to cases involving convictions under section 4501 but, relying on
People v. Johnson (2007) 150 Cal.App.4th 1467 (Johnson) and similar cases, contend
that appellant was properly convicted of multiple offenses under section 4501 based on a
claim the assault constituted more than one course of conduct. The resolution of this
issue turns on whether Aguayo or Johnson is more applicable to the facts of this case.
In Aguayo, after concluding that assault with a deadly weapon and assault with
force likely to cause great bodily injury describe the same offense, the court considered
the claim “that section 954 is no impediment to [Aguayo]’s dual convictions for a
different reason: they are based on separate acts.” (Aguayo, supra, 13 Cal.5th at p. 993.)
Aguayo had struck her father with a bicycle chain more than 50 times and had also
thrown a ceramic pot at his head. (Ibid.) The Supreme Court explained that the multiple
strikes were insufficient to show the jury had properly convicted Aguayo of two separate
offenses based on several relevant facts. These included that “the jury did not make a
finding of fact identifying which act supported which specific count.” (Id. at p. 994.)
The court reached this conclusion for several reasons, including because the jury was not
asked to make such a finding, the prosecution never identified the particular acts
supporting each assault claim and argued in a manner that implied the use of the chain
could satisfy both charges, and the jury instructions did not identify the charged acts or
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include an unanimity instruction. (Ibid.) According to the court, the relevant question
was whether there was “a reasonable probability the jury failed to” determine how many
times the victim was struck and, ultimately, whether there was a “reasonable probability
that the jury would have convicted [Aguayo] of only one, and not both, aggravated
assault offenses.” (Id. at p. 995.)
In Johnson, our sister court in the Sixth District affirmed a conviction wherein
Johnson was convicted of three counts of corporal injury to a cohabitant based upon
multiple injuries inflicted during a single course of action. (Johnson, supra,150 Cal.App.4th at pp. 1473–1474.) Johnson involved three distinct charges brought
under section 273.5, a crime “complete upon the willful and direct application of physical
force upon the victim, resulting in a wound or injury.” (Johnson, at p. 1477.) The factual
scenario presented to the jury showed Johnson beat the victim “about the face and head;
held her by her throat up against the wall; beat her on her back, hips, and legs; and
stabbed her in the upper arm.” (Ibid.) From these facts, the court found “the jury could
have concluded that [Johnson] completed one violation of section 273.5 when he beat
[the victim] about the head and face …; another when he held her by the throat …; and
another when he injured her upper arm .…” (Ibid.) Notably, given the structure of the
argument raised, there was no discussion regarding the jury instructions or the general
presentation of evidence.
We conclude that Aguayo controls. The record in this case closely parallels the
record in Aguayo and is materially distinct from Johnson. Similar to Aguayo, the
information failed to identify the acts supporting each charge, the instructions did not
require the jury to reach unanimity regarding which acts supported each conviction, and
the prosecutor generally argued the case as a single assault and not as multiple criminal
violations. Further, in contrast to Johnson, there were not multiple charges asserting the
same violation, leaving the jury no choice but to identify multiple offenses to support
each charge. As in Aguayo, had the jury been instructed that multiple offenses had to be
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supported by separate factual findings, it is reasonably probable that the jury would have
convicted appellant of only one, and not both, assault offenses. Accordingly, appellant’s
dual convictions cannot stand under the facts of this case.
Having found that appellant’s dual convictions are improper, we briefly consider
the proper remedy. Appellant requests this court strike count 1 but does so in part on the
related but rejected contention that there is insufficient evidence to support that charge.
Our Supreme Court, in Aguayo, took no position on whether the proper remedy is to
strike one or the other charge, or consolidate the two convictions. (Aguayo, supra,
13 Cal.5th at p. 996.)
Our Supreme Court did cite, however, to People v. Craig (1941) 17 Cal.2d 453,
458–459, overruled on another point in People v. White (2017) 2 Cal.5th 349, 359, which
held that consolidation of the judgment is within the court’s power and serves to protect
the defendant’s interests. Further, in this case, consolidation will not affect appellant’s
final sentence. Appellant does not challenge the imposition of the upper term for his
sentence, and there are no enhancements or other modifiers that would change depending
on whether count 1 or count 2 remains. Given the jury’s conviction on both statements of
the assault offense, consolidation into a single conviction of assault with a deadly weapon
and by means of force likely to produce great bodily injury (§ 4501, subds. (a), (b))
“preserves all of those jury findings, and does not increase the severity of defendant’s
sentence.” (People v. Coyle (2009) 178 Cal.App.4th 209, 218.) We thus conclude that
modification of the sentence to reflect appellant was convicted of committing one count
of assault with a deadly weapon and by means of force likely to produce great bodily
injury is appropriate.
DISPOSITION
The judgment on count 1 is modified to reflect appellant was convicted of assault
with a deadly weapon and by means of force likely to produce great bodily injury
(§ 4501, subds. (a), (b)). Appellant’s assault conviction in count 2, together with the
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sentence imposed but stayed on that count, is reversed and vacated. In all other respects,
the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and minute
order to reflect the modifications and to forward a certified copy of the amended abstract
to the Department of Corrections and Rehabilitation.
HILL, P. J.
WE CONCUR:
DETJEN, J.
SMITH, J.
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