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The People v. Phillip James Dering

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


December 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PHILLIP JAMES DERING, DEFENDANT AND APPELLANT.

(Monterey County Super. Ct. No. SS091218A)

The opinion of the court was delivered by: Elia, J.

P. v. Dering CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On August 5, 2009, the Monterey County District Attorney filed an amended information in which appellant was charged with assault by means of force likely to produce great bodily injury or with a deadly weapon (a bottle) (Pen. Code, § 245, subd. (a)(1), count one) and battery with serious bodily injury. (§ 243, subd. (d), count two).*fn1 The information alleged that appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); had served two prior prison terms within the meaning of section 667.5, subdivision (b); and had suffered a prior serious and violent felony conviction within the meaning of sections 1170.12, subdivision (c)(1) and 667, subdivision (a)(1).

Following a jury trial, appellant was found not guilty of assault with a deadly weapon, but guilty of assault by force likely to produce great bodily injury and guilty of battery with serious bodily injury. In addition, as to the assault charge, the jury found appellant personally inflicted great bodily injury on the victim. After appellant waived jury trial on the priors, the court found all prior conviction allegations to be true.

On December 18, 2009, the court denied appellant's motion to strike his prior strike conviction, denied probation and sentenced appellant to an 18-year state prison term composed of the following: the upper term of four years on count one doubled by virtue of appellant's prior strike conviction (§ 1170.12), plus three years for the great bodily injury enhancement (§ 12022.7) and a five-year enhancement pursuant to section 667, subdivision (a)(1) and two one-year prior prison terms pursuant to section 667.5, subdivision (b).

Appellant filed a timely notice of appeal.

On appeal, appellant raises four issues. First, he contends that the trial court erred in failing to give a self-defense instruction. Second, he was denied the effective assistance of counsel because trial counsel did not request a self-defense instruction. Third, the trial court erred by imposing a one-year prison term for the same prior conviction for which the trial court imposed a five-year prison term. Finally, the trial court erred in imposing a court facilities assessment.

For reasons that follow, we find no merit in appellant's contentions and affirm the judgment.

Facts and Proceedings Below

At approximately 3 p.m. on April 24, 2009, William Traficanti was in his car, which was stopped at a red light, when his attention was drawn to two men having an animated conversation on the sidewalk approximately 75 to 90 feet away. Traficanti could not hear the conversation, but the men appeared perturbed. Traficanti described the men as "a black man and a white man." Traficanti saw the white man, later identified as appellant, walk away for about five to 10 steps, then turn around and walk back.*fn2 Appellant walked up to the black man, later identified as David Williams, grabbed him by the collar of his shirt and threw him down onto the pavement on his back.*fn3 Traficanti stated that he felt "like [he] could almost hear the guy's head hit the concrete." Traficanti saw appellant kick Williams in the back of the head "at least once, perhaps twice." Then, appellant turned and walked away. At no time did Traficanti see Williams throw a punch at appellant.

Traficanti called 911 on his cell phone and went to aid Williams. When Traficanti reached Williams he appeared to be unconscious and seemed to be having trouble breathing. Traficanti could smell beer on Williams. Later, he saw a broken beer bottle in the gutter nearby. When asked by defense counsel if he saw a cut on appellant's head, Traficanti said that he did not notice one while he was sitting in traffic. However, later, when he saw appellant after the police had apprehended him, appellant had a wound to his head that was bleeding.

Two other people witnessed the incident. Jacinta Atilano testified that she was in her car and saw at least part of the fight. Atilano said that she looked over and "saw a tall black man basically getting hit by a shorter white man." In court, Atilano identified appellant as the white man.*fn4 According to Atilano, she saw appellant hit Williams with a beer bottle; the blow knocked Williams down. Thereafter, appellant walked away, turned back and punched Williams while Williams was on the ground. At this point, Williams was "throwing up blood" and was "totally defenseless."

Atilano testified she was about 10 feet from the men and never heard them speak a word. After appellant left the scene, Atilano went to help Williams and could smell alcohol on his breath. When Atilano identified appellant in the field, she noticed that he appeared to be injured, but she could not recall seeing any injuries on him when he left the fight. Atilano testified that she did not see Williams hit appellant.

Bob Lord, a parks and recreation worker, was doing his last park roundup check when he noticed that the traffic was stopped and that two "guys" were walking up the street. It appeared to Lord that they were arguing. Lord could not hear what they were saying due to the fact that they were 100 feet away and he has a "hearing problem." Lord did not pay much attention to what was going on. He reached down to grab his water bottle and when he looked back up he saw appellant hit Williams in the head. Immediately, Williams went down "like a sack of rocks." He saw appellant walk away, turn around and then kick Williams in the head. Appellant picked up a jacket or other article of clothing and then went back up the street.

Lord never saw Williams throw a punch, or make any aggressive moves, nor did he recall seeing an injury to appellant's head or face. Lord did not know what started the fight and he never saw either man use a bottle as a weapon. After the fight, Lord went to help Williams; he did not smell any alcohol on him.

Salinas Police Officer Rodolfo Roman testified that he responded to a 911 call "of a subject beating up on a 62 year old male." When he arrived on scene, Williams, who appeared to be unconscious, was being placed in an ambulance. Williams had blood on his face. He did not open his eyes or speak. Officer Roman talked to witnesses and collected evidence. Nearby, he found a bank card belonging to Williams, an iPod, a baseball cap, a jacket that the medics had cut off Williams and a set of keys. In the street the officer found an unopened 40 ounce bottle of beer.

Paramedic Travis Simpson and emergency medical technician Laura Heredia treated Williams at the scene. Williams was unconscious and lying in a puddle of vomit. At one point, Williams "woke up" for a few seconds, resisted the pain of being positioned on a back board then fell unconscious again. His lower lip was "busted." He had a very swollen right eye, "significant" head trauma and an obvious fresh deformity in his frontal area -- a baseball size hematoma, quite a bit of blood on his face and a laceration to the right side of his face. According to Simpson, the injuries to Williams were consistent with a "big" impact, such as being hit by a bottle or hitting the pavement "super hard."

About 15 minutes after receiving a dispatch, California Highway Patrol Officer Christopher Weaver located appellant sitting on a bus bench. As Officer Weaver approached, appellant stood up and put his hands on his head before Officer Weaver said anything to him. Officer Weaver noticed that appellant had a "pretty good" laceration above his eye that appeared to need stitches. While Officer Weaver was waiting for local law enforcement to arrive, appellant "made the statement that he was involved in an altercation with a guy that was over there by the parking structure. He said that he didn't start it. The guy came up on him and hit him, and that he fought back and left." Officer Weaver thought that appellant said something about being hit with a bottle. Officer Weaver handed appellant to Officer Roman who transported appellant to jail. At this time, Officer Roman saw a laceration above appellant's left eye. Officer Roman did not question appellant about the injury.

Discussion

Self-Defense Instruction

Appellant contends that the trial court erred in failing to instruct on self-defense thereby violating his constitutional rights to due process under the Fifth and Fourteenth Amendments and Sixth Amendment right to a jury trial.

Background

Appellant did not present any witness, but rather relied on the state of the evidence to argue that he was engaged in mutual combat. Specifically, defense counsel argued that there was no evidence that appellant started the fight, "but he's just the one that walked away. Both men were injured. Both men were engaged in this fight. Both men were injured. It was a mutual fight, and that's our defense. It was a mutual fight."

A trial court has a sua sponte duty to instruct on a defense if it is supported by substantial evidence and it is not inconsistent with the defendant's theory of the case. (People v. Salas (2006) 37 Cal.4th 967, 982.) In deciding whether there is substantial evidence to support the instruction, "the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt. . . .' " (Ibid.)

In particular, a trial court is required to instruct the jury on self-defense when substantial evidence supports the theory the defendant actually and reasonably believed he needed to defend himself against an imminent danger of death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The defendant's belief must be objectively reasonable. (Id. at pp. 1082-1083.) Reasonableness in this context is judged from the point of view of a reasonable person in defendant's position. (Id. at p. 1083.) " 'To justify an act of self-defense . . . the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]' " (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.)

Independently, we review the question of whether the trial court erred by failing to instruct on a defense. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)

Self-defense is an affirmative defense that provides justification for an otherwise criminal act. (1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Defenses, § 64, p. 400.) When the defendant reasonably fears imminent danger, he or she may use whatever force is necessary to defend him or herself. (Ibid.)

In People v. Ross (2007)155 Cal.App.4th 1033, the court discussed the theory of "mutual combat" questioning "[w]hat distinguishes 'mutual' combat from combat in which one of the participants retains an unconditional right of self-defense[.]" (Id. at p. 1044.) The court observed, "[t]he mutuality triggering the doctrine inheres not in the combat but in the pre-existing intent to engage in it. Old but intact caselaw confirms that as used in this state's law of self-defense, 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Id. at p. 1045.) The court concluded, " 'mutual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047.)

Relevant here, a defendant who engages in mutual combat or who is the initial aggressor has a right to self-defense only if he actually and in good faith tries to stop fighting and he indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting and he gives his opponent a chance to stop fighting. If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. (CALCRIM No. 3471.) Thus, the only way that appellant could have raised a reasonable doubt in this case is if the evidence showed that appellant had stopped fighting and then Williams continued to fight, putting appellant in reasonable fear of imminent danger.

We have reviewed the record and conclude no evidence supports a claim of self-defense in the context of mutual combat. First, there was no evidence that Williams ever struck or even pushed appellant that would show appellant was engaged in mutual combat with Williams.*fn5 Second, the undisputed testimony of the witnesses is that after the initial confrontation/argument between appellant and Williams, during which Williams threw no punches or even pushed appellant, appellant walked away, turned, came back, and then threw Williams to the ground where he hit his head on the pavement. Williams did not get up, but while he was on the ground virtually helpless, appellant kicked him in the head at least once. Once Williams was on the ground it would have been readily apparent to a reasonable person that Williams was not capable of inflicting harm on anyone.

Since there was no evidence that created a doubt as to whether appellant acted in self-defense in the context of mutual combat, the court did not err in failing to give a self-defense instruction on its own motion.

Ineffective Assistance of Counsel

Appellant contends that "by not requesting instruction on self-defense, defense counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate."

A defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Frye (1998) 18 Cal.4th 894, 952, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 2; Strickland v. Washington (1984) 466 U.S. 668, 687-688.) To put it another way, appellant must demonstrate " '(1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner.' " (In re Jones (1996) 13 Cal.4th 552, 561.)

A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington, supra, 466 U.S. at p. 689.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Maury (2003) 30 Cal.4th 342, 389.)

It is not necessary to establish deficient performance before considering the issue of prejudice: " 'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079.)

Given the state of the evidence, as noted ante, there is no reasonable probability that if counsel had requested a self-defense instruction the result would have been more favorable to appellant.

One Year Prison Term Pursuant to Section 667.5

The information alleged appellant had a prior serious felony conviction within the meaning of section 667, subdivision (a)--assault on a peace officer with a deadly weapon in 2000-- and had served two prior prison terms within the meaning of section 667.5, subdivision (b)--one for the 2000 assault on a peace officer with a deadly weapon/felon in possession of a firearm and one for transportation of a controlled substance in 2004. The court found these allegations to be true.

In sentencing appellant, the court imposed a five-year enhancement on count one pursuant to section 667, subdivision (b), for the strike (the assault on a peace officer) and imposed one year for each of the prior prison terms.

Appellant asserts that the trial court erred by imposing a one-year prison term for the same prior conviction for which the trial court imposed a five-year term.

In People v. Jones (1993) 5 Cal.4th 1142, 1144-1152 (Jones), our Supreme Court held that it was error for the trial court to use the same prior conviction to impose both a five-year prior serious felony enhancement (§ 667, subd. (a)) and a one-year prior prison term enhancement under section 667.6, subdivision (b). In Jones, the trial court had imposed an enhancement under section 667, subdivision (a), and also under section 667.5, subdivision (b), based upon one prior felony offense of kidnapping. (Id. at p. 1145.)

Our Supreme Court stated that "the most reasonable reading of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Jones, supra, 5 Cal.4th at p. 1150.) The trial court may not use one prior conviction to impose a prior prison term enhancement under section 667.5 and a mandatory section 667 prior serious felony conviction enhancement. (Id. at pp. 1149-1150.)

However, other courts have recognized that the Jones prohibition does not apply when the prison term contains two separate crimes, one of which is a serious felony. (See e.g. People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610 (Gonzales.) Gonzales involved a one-year sentence enhancement for a prior prison term served for concurrent prison sentences imposed for two separate convictions. (Id. at pp. 1610-1611.) The Gonzales sentencing court imposed an enhancement for a serious prior felony conviction for one of the convictions on which the prior prison term enhancement was based. (Ibid.) The appellate court held that, although the prior prison term enhancement was based in part on the same case that was the basis for the prior felony conviction enhancement, there was no dual use of facts because it was also based on a separate, independent conviction. (Ibid.)

In Gonzales, the disputed one-year enhancement imposed for the prior prison term (§ 667.5) involved a concurrent prison sentence imposed for two separate crimes, one of which was a serious prior felony under section 667, subdivision (a). In the amended information, the third prior prison term allegation alleged that the defendant had served a prior prison term for spousal abuse (§ 273.5, subd. (a)) in case No. CRN 10532 and for possession of a controlled substance in jail/prison (§ 4573.6) in case No. CRN 11200. In each of those cases, the defendant was given a prison sentence, and the terms were ordered to run concurrently. Hence, only one prison sentence or term resulted from the two separate crimes. (Gonzales, supra, 20 Cal.App.4th at p. 1610.) As noted, the trial court imposed a five-year enhancement for the prior serious felony conviction (§ 667, subd. (a)) in case No. CRN 10532. (Ibid.) The question presented to the Gonzales court was whether Jones precluded the court from imposing the one-year enhancement under section 667.5 when the prior prison term was based in part on the same case that was the basis for imposition of a prior serious felony conviction (§ 667, subd. (a)), and based in part on a separate, independent case. (Ibid.)

The Gonzales court concluded that Jones did not preclude imposition of the section 667.5 one-year enhancement for the third prior prison term allegation. The Gonzales court reasoned that because in 1986, the defendant had been sentenced in case No. CRN 10532 to prison and again in 1986, the court imposed a concurrent prison term in case No. CRN 11200, each case provided an independent basis for the third prior prison allegation alleged against the defendant in the amended information. Each case involved a separate crime, which was committed separately and brought and tried separately. In other words, case No. CRN 11200 could serve as a sufficient basis in and of itself to support the third prior prison allegation against the defendant in the amended information. (Id. at p. 1610-1611.)

Thus, Gonzales appears to hold that as long as the prior serious felony enhancement and the prior prison term enhancement are based on two different convictions in two different cases, the Jones court's concern that a single prior conviction might be the basis for "piling on" is not implicated. In addition, we note that a number of subsequent cases have unanimously come to the same conclusion as Gonzales. (People v. Solorzano (2007) 153 Cal.App.4th 1026, 1040-1041; People v. Ruiz (1996) 44 Cal.App.4th 1653, 1667-1669; People v. Brandon (1995) 32 Cal.App.4th 1033, 1055; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1303-1304.)

Appellant points out that the difference here is that the disputed prior prison term arose from one case in which he was convicted of three different felonies.*fn6 Thus, he argues, the reason the Gonzales court let stand the term imposed for the third prior prison term in that case, does not apply in this case.

The question we must answer, therefore, is as follows; is the trial court prevented from using one felony to enhance appellant's sentence under section 667, subdivision (a) (the five year enhancement for a prior serious felony) and using a different felony tried in the same case to enhance the sentence under section 667.5, subdivision (b) (the one year prison prior)? For reasons that follow, we conclude that it does not.

Enhancements imposed pursuant to section 667.5, subdivision (b), are imposed for "that particular subset of 'prior felony convictions' that were deemed serious enough by earlier sentencing courts to warrant actual imprisonment." (People v. Prather (1990) 50 Cal.3d 428, 440; see Jones, supra, 5 Cal.4th at p. 1148.) That is, a section 667.5, subdivision (b) enhancement is imposed for the prior offense underlying a prior prison term. (Jones, at pp. 1149-1150, [when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply].) Thus, the concern in Jones was that the same offense was being used to enhance the defendant's sentence, not the same case.

Here, the trial court imposed both a section 667, subdivision (a) enhancement and a section 667.5, subdivision (b) enhancement for the same prior criminal case. That case, however, involved at least two offenses, resulting in separate convictions with consecutive terms for each conviction. The trial court did not run afoul of Jones, supra, 5 Cal.4th 1142 by imposing a section 667, subdivision (a) enhancement for the assault on a peace officer with a deadly weapon and a section 667.5, subdivision (b) enhancement for the other felony, felon in possession of a firearm. Since there were two crimes contained within one prison prior, there was no dual use of facts. (See Gonzales, supra, 20 Cal.App.4th at p. 1610.)

Court Facilities Assessment

During sentencing, the court imposed a court facilities assessment in the amount of $60 pursuant to Government Code section 70373. Appellant maintains that this assessment applies to only Vehicle Code violations, and since he did not violate the Vehicle Code, the assessment does not apply.

The court facilities assessment is set out in Government Code section 70373,*fn7 which provides in pertinent part: "(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction." (Italics added)

Appellant contends that as a matter of statutory construction, the meaning of Government Code section 70373, subdivision (a)(1) is clear. He asserts that under widely accepted grammatical rules, the commas surrounding the phrase, denoted in italics ante, make that phrase a " 'nonrestrictive phrase.' " As such, appellant contends it is nonessential and can be removed from the statute. Thus, he asserts that after removing the nonrestrictive phrase from the sentence, we are left with the essential meaning of the statute. Thus, appellant maintains that the statute should read as follows: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction."

Respectfully, we disagree with appellant.*fn8 Assuming for the sake of argument that appellant is correct, in construing a statute, courts employ the rule "that a statute 'must be given a reasonable and common sense interpretation consistent with the apparent purpose and intent of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.' " (Welch v. Oakland Unified School Dist. (2001) 91 Cal.App.4th 1421, 1428.) "Courts may . . . disregard even plain language which leads to absurd results or contravenes clear evidence of a contrary legislative intent." (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105.)

The Legislature could not have intended section 70373 to be interpreted to be restricted solely to violations of the Vehicle Code. "Section 70373 was enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Sess.) on September 26, 2008. In relevant part, Senate Bill No. 1407 (2007-2008 Reg. Sess.) establishes the Immediate and Critical Needs Account (ICNA) of the State Court Facilities Construction Fund (SCFCF). 'To ensure and maintain adequate funding for court facilities,' section 70373 imposes a $30 assessment on every conviction for a felony or misdemeanor criminal offense and $35 for each infraction, with certain limited exceptions. (§ 70373, subd. (a)(1).) The amount collected from the assessment is to be deposited in the ICNA. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1407 (2007-2008 Reg. Sess.) as amended May 27, 2008, p. 2.)" (People v. Phillips (2010) 186 Cal.App.4th 475, 479, fn. 3.) Thus, section 70373 was adopted as one component of the effort to address a budget shortfall. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413; People v. Phillips, supra, 186 Cal.App.4th at p. 479.) Appellant's interpretation of the statute would thwart the legislative purpose behind section 70373.

Accordingly, we reject appellant's assertion that the section 70373 assessment applies to only Vehicle Code violations. As a result, we conclude the assessment was properly imposed.

Disposition

The judgment is affirmed.

WE CONCUR:

RUSHING, P. J.

PREMO, J.


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