People v. Jackson CA3

Filed 7/8/21 P. v. Jackson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089347
Plaintiff and Respondent, (Super. Ct. No. 18FE009188)
v.
MARTAVIUS ANTON JACKSON,
Defendant and Appellant.
A jury found defendant Martavius Anton Jackson guilty of assault with a deadly
weapon and assault by means of force likely to produce great bodily injury. (Pen. Code,
§ 245, subd. (a)(1), (4) [statutory section references that follow are found in the Penal
Code unless otherwise set forth].) On appeal, defendant contends: (1) his duplicative
convictions under section 245 arising from the same assault based on a single act must be
reversed pursuant to section 954; and alternatively, (2) he cannot be convicted under both
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section 245, subdivisions (a)(1) and (a)(4) because assault by force likely to produce
great bodily injury is a lesser included offense of assault with a deadly weapon.
We will vacate defendant’s conviction for assault by means of force likely to
cause great bodily injury, which duplicates his conviction for assault with a deadly
weapon where, as here, both crimes are based on the same act. Because we agree with
defendant’s first argument, we need not reach his alternative argument. As modified, we
will affirm with directions.
FACTS AND HISTORY OF THE PROCEEDINGS
Defendant was charged in count one of an information with assault with a deadly
weapon (§ 245, subd. (a)(1)), and in count two with assault by means of force likely to
cause great bodily injury (§ 245, subd. (a)(4)). The information further alleged as to both
counts that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
D.B., and his mother, P.S., lived in adjoining apartment units. D.B. was
acquainted with defendant and his girlfriend, S.P., and had a cordial relationship with
them. On the evening of May 3, 2018, D.B. stepped outside his apartment to have a
cigarette, where he found his mother crying. When D.B. asked what was wrong, P.S.
replied, “that the neighbors had threatened her” and that “she was going to call the
police.” She pointed to a car and said that S.P. and defendant were the ones who had
threatened her. S.P. and defendant, still in the car, screamed, “bitch” toward D.B. and his
mother, so D.B. walked towards the car. As he got closer, he saw S.P. standing outside
of the car by the driver’s side door and defendant sitting in the passenger seat inside the
car. D.B. asked S.P., “[W]hat’s wrong? What’s going on?” in an attempt to defuse the
situation. Defendant then got out of the car, aggressively moved toward D.B., and
repeatedly yelled, “You need to be talking to me.” D.B. responded that he was talking to
defendant. The two continued exchanging words, then defendant swung a closed fist at
D.B.’s head. He missed, and S.P. attempted to break things up. D.B. stepped back and
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entered a boxing stance. Defendant then pulled out a knife, and D.B. asked, “What do
you got that for?” D.B. stepped back and began to walk away before turning and
punching defendant in the face. Defendant then came toward D.B. with the knife and
stabbed him in the stomach. After stabbing D.B., defendant ran to the car and drove
away.
D.B., who was covered in blood, glanced down and it “[l]ooked like [his] stomach
was falling out[.]” After the police arrived, D.B. was taken to the hospital where he
received 12 staples to close his stomach wound.
The jury found defendant guilty as charged. Thereafter, the trial court sentenced
defendant to an aggregate term of six years in state prison as follows: the midterm of
three years on count one plus three years for the great bodily injury enhancement under
count one. On count two, the trial court sentenced defendant to the midterm of three
years, stayed (§ 654), plus three years for the great bodily injury enhancement under
count two, stayed (§ 654).
DISCUSSION
Defendant contends he committed only one offense of assault and the duplicative
offense in count two therefore must be vacated because both arose from a single act:
stabbing the victim. We agree.
Section 954 generally governs multiple offenses or multiple statements of an
offense. Section 954 allows the People to join, in one action, different offenses
connected in their commission, different statements of the same offense, and different
offenses of the same class of crimes. Though section 954 “ ‘authorizes multiple
convictions for different or distinct offenses, [it] 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.’ ” (People v. Vidana (2016) 1 Cal.5th 632, 650 [defendant cannot be convicted
of larceny and embezzlement for the same conduct, even if the crimes have different
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elements and are not lesser included offenses] (Vidana).) Whether statutory provisions
“define different offenses or merely describe different ways of committing the same
offense properly turns on the Legislature’s intent in enacting these provisions, and if the
Legislature meant to define only one offense, we may not turn it into two.” (People v.
Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez).)
In Gonzalez, the defendant was convicted of oral copulation of an unconscious
person in violation of section 288a, subdivision (f) and oral copulation of an intoxicated
person in violation of section 288a, subdivision (i) based on the same act. (Gonzalez,
supra, 60 Cal.4th at p. 536.) In concluding that the Legislature intended these
subdivisions to define separate offenses, the court primarily relied on the structure of the
statute: “Subdivision (a) of section 288a defines what conduct constitutes the act of oral
copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be
criminal. Each subdivision sets forth all the elements of a crime, and each prescribes a
specific punishment. Not all of these punishments are the same. That each subdivision
of section 288a was drafted to be self-contained supports the view that each describes an
independent offense, and therefore section 954 is no impediment to a defendant’s
conviction under more than one such subdivision for a single act.” (Id. at p. 539.)
Subsequently, in Vidana, our Supreme Court considered whether larceny and
embezzlement were different offenses, or merely different statements of the same
offense. (Vidana, supra, 1 Cal.5th at p. 648.) The court noted that larceny and
embezzlement have different elements and are found in “self-contained statute[s].”
(Ibid.) However, the court also looked to section 490a, which provides that any statute
that mentions larceny or embezzlement “ ‘shall hereafter be read and interpreted as if the
word “theft” were substituted therefor.’ ” (Ibid.) The court reasoned the “obvious intent”
of section 490a “was to create a single crime of theft.” (Ibid.) Additionally, the court
noted that larceny and embezzlement “generally have the same punishment.” (Id. at
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pp. 648-649.) Thus, the court concluded, larceny and embezzlement “are simply
different ways of describing the behavior proscribed by those statutes.” (Id. at p. 649.)
As to the crimes charged here, section 245, subdivision (a)(1) previously set forth
a single offense of “assault upon the person of another with a deadly weapon or
instrument or by any means of force likely to produce great bodily injury. . . .” (In re
Mosley (1970) 1 Cal.3d 913, 919, fn. 5.) Thus, “[t]he offense of assault by means of
force likely to produce great bodily injury is not an offense separate from . . . the offense
of assault with a deadly weapon.” (Ibid.; see In re Jonathan R. (2016) 3 Cal.App.5th
963, 972 [noting that under former § 245, assault with a deadly weapon and assault by
means likely to produce bodily injury were two alternative means of committing the same
offense] (Jonathan R.).) In cases involving a weapon that was not itself inherently
dangerous, the two clauses of section 245, subdivision (a)(1) were considered
“functionally identical” because noninherently dangerous instruments become deadly
weapons only by “their use in a manner capable of producing great bodily injury.”
(People v. Aguilar (1997) 16 Cal.4th 1023, 1030, 1035.)
In 2011, the two variants of assault described under former section 245,
subdivision (a)(1) were placed in separate paragraphs of subdivision (a), that is
paragraphs (a)(1) and (a)(4). (Stats. 2011, ch. 183, § 1.) “According to the bill’s author,
the purpose of the amendment was to make it easier for prosecutors and defense attorneys
to determine whether a defendant’s past aggravated assault conviction involved the use of
a weapon when examining a defendant’s criminal history,” since past aggravated assault
convictions involving the use of a weapon are treated differently for purposes of certain
recidivist provisions than those not involving a weapon. (Jonathan R., at p. 971 [citing
Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.)
Apr. 26, 2011, pp. 1-2].)
As amended, section 245 now reads, in relevant part: “(a)(1) Any person who
commits an assault upon the person of another with a deadly weapon or instrument other
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than a firearm shall be punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten
thousand dollars ($10,000), or by both the fine and imprisonment. [¶] . . . [¶] (4) Any
person who commits an assault upon the person of another by any means of force likely
to produce great bodily injury shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not exceeding one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.”
Courts have reached differing conclusions as to whether these two subsections
constitute different offenses. In Jonathan R., the First District Court of Appeal felt itself
constrained by “[t]he Supreme Court’s latest word on the issue of multiple convictions,”
that is Gonzalez, supra, 60 Cal.4th 533. (Jonathan R., supra, 3 Cal.App.5th at p. 969.)
The Jonathan R. court explained: “The statutory structure of section 245 is
indistinguishable from that of section 288a. Each subdivision of section 245 sets out
different circumstances under which a person can commit aggravated assault, and each
subdivision specifies the punishment applicable to those circumstances. The reasoning of
Gonzalez would therefore classify each subdivision as a separate offense and permit more
than one conviction based upon the violation of more than one subdivision of section
245.” (Id. at p. 970.) The court resisted consideration of section 245’s legislative history,
reasoning, “The rationale of Gonzalez precludes such an analysis.” (Jonathan R., at
p. 971.)
While the court in Jonathan R. concluded the two subdivisions constituted
separate offenses, it vacated the defendant’s conviction under section 245, subdivision
(a)(4) on the ground it was necessarily included within his conviction under subdivision
(a)(1) based on the rationale of People v. Aguilar, supra, 16 Cal.4th at pages 1029-1036.
(Jonathan R., supra, 3 Cal.App.5th at pp. 971-975.) Specifically, “[w]hen a defendant
commits an assault using an instrument other than a firearm, the instrument is considered
to be a ‘deadly weapon,’ and therefore to qualify under section 245, subdivision (a)(1),
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only if the instrument is used in a manner that is likely to produce death or great bodily
injury. For that reason, when assault with a deadly weapon other than a firearm is found
to have occurred, the trier of fact necessarily must have concluded the defendant used or
attempted to use force likely to produce great bodily injury, since that likelihood is what
makes a weapon or instrument ‘deadly.’ ” (Id. at p. 973.)
More recently, the Fourth District Court of Appeal rejected the holding in
Jonathan R., supra, 3 Cal.App.5th at pages 971-975, that subdivisions (a)(1) and (a)(4) of
section 245 constitute separate offenses. (People v. Brunton (2018) 23 Cal.App.5th 1097(Brunton).) In Brunton, the court reasoned that Gonzalez was no longer the “ ‘Supreme
Court’s latest word on the [section 954] issue’ ” because the Supreme Court had since
issued its decision in Vidana, supra, 1 Cal.5th 632. (Brunton, at p. 1106.) The Brunton
court reasoned that in Vidana, the Supreme Court “undertook a detailed analysis of the
legislative history behind the larceny and embezzlement statutes, concluding they
constituted mere restatements of the same offense, even though they ‘have different
elements,’ ‘neither is a lesser included offense of the other,’ and they are found in ‘self-
contained’ statutes.” (Brunton, at pp. 1106-1007.)
The Brunton court then considered the legislative history of section 245, including
prior judicial construction that concluded subdivision (a)(1) set forth only one offense,
and subsequent legislative statements indicating that amendments that separated this
subdivision into two separate paragraphs were mere technical changes that did not create
any new felonies. (Brunton, supra, 23 Cal.App.5th at p. 1107.) The court concluded
when an assault is based on “a defendant’s single act of using a noninherently dangerous
object in a manner likely to produce great bodily injury, section 245[, subdivisions] (a)(1)
and (4) are merely different statements of the same offense such that the defendant may
not be convicted of violating both subparts of the subdivision.” (Id. at p. 1107.)
Here, defendant committed one discrete act using a knife, not a multifaceted
attack. This is comparable to Brunton. We agree with the Brunton court’s reasoning that
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when both types of aggravated assault are “based on a defendant’s single act of using a
noninherently dangerous object in a manner likely to produce great bodily injury,” the
defendant may not be convicted twice. (Brunton, supra, 23 Cal.App.5th at p. 1107.)
Both count one and count two were based on the single act of defendant attacking D.B.
with a knife, a noninherently dangerous object. (See People v. Aledamat (2019) 8 Cal.5th
1, 6 [“Because a knife can be, and usually is, used for innocent purposes, it is not among
the few objects that are inherently deadly weapons”].) The prosecutor made clear in
closing that the two different counts were based on the same conduct, a stabbing causing
great bodily injury. As the jury’s verdict necessarily implies, the knife was used by
defendant in a manner likely to produce great bodily injury, and thus became a deadly
weapon under the circumstances.
Applying Brunton here, we conclude that the convictions in counts one and two
were based on different statements of the same offense because both were based on
defendant’s use of a noninherently dangerous object in a manner likely to produce great
bodily injury. Both counts are based on one indivisible act. Thus, defendant cannot be
twice convicted of one assault where both convictions are different statements of the
same offense. (Vidana, supra, 1 Cal.5th at p. 650.) Accordingly, we vacate defendant’s
conviction in count two for assault by means of force likely to cause great bodily injury.
(§ 245, subd. (a)(4).) He remains convicted in count one of assault with a deadly
weapon, which fits his crime of stabbing the victim with a knife and which the trial court
used as the principal term in sentencing, staying the term on count two. (§ 245, subd.
(a)(1); People v. Ryan (2006) 138 Cal.App.4th 360, 371 [reviewing court retains the
conviction that more completely covers the defendant’s act].)
DISPOSITION
The judgment is modified to vacate defendant’s conviction on count two, assault
by means likely to produce great bodily injury. Defendant’s prison sentence is
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unchanged. The trial court is directed to correct the abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. As modified, the
judgment is affirmed.
HULL, Acting P. J.
We concur:
MURRAY, J.
KRAUSE, J.
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