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People v. Brunton

California Court of Appeals, Fourth District, First Division

May 30, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD BRUNTON, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of San Diego County, No. SCD267484 Laura Halgren, Judge. Affirmed, as modified, with directions.

          Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

          HALLER, J.

         Based on a single act of choking his cellmate with a tightly rolled towel, a jury found defendant Richard Brunton guilty of assault with a deadly weapon (Pen. Code, [1] § 245, subd. (a)(1); hereafter, § 245(a)(1)) and assault by means of force likely to produce great bodily injury (force-likely assault) (§ 245, subd. (a)(4); hereafter, § 245(a)(4)), and found true the allegation that he personally used a deadly weapon (the towel) in the commission of the force-likely assault (§ 12022, subd. (b)(1)).[2] The trial court sentenced Brunton to six years in prison, consisting of four years on the force-likely assault conviction, one year for the deadly weapon enhancement attached to that conviction, and one year for a prison prior. The court imposed, but stayed under section 654, a four-year sentence on the assault-with-a-deadly-weapon conviction.

         On appeal, Brunton contends we must vacate his force-likely assault conviction because it is merely a different statement of the same offense for which he was also convicted (assault with a deadly weapon). (See § 954; People v. Vidana (2016) 1 Cal.5th 632, 650 (Vidana) [" 'section 954... 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' "].) Brunton further contends that, because the single offense of which he was convicted included the element that he used a deadly weapon, we must strike the deadly weapon enhancement attached to the force-likely assault conviction. (§ 12022, subd. (b)(1) [enhancement does not apply when "use of a deadly or dangerous weapon is an element of [the] offense"].)

         On the record before us, where Brunton's convictions for assault with a deadly weapon and force-likely assault are based on a single act that involved the use of a noninherently dangerous object in a manner likely to produce death or great bodily injury, we agree that one of the duplicative convictions must be vacated. Accordingly, we remand with directions to the trial court to strike one of the duplicative convictions, to strike the deadly weapon enhancement attached to the force-likely assault conviction, and for resentencing consistent with this opinion. In all other respects, we affirm the judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Background

         Around 3:00 a.m. on May 29, 2016, Christopher G. was booked into the San Diego Central Jail for theft, and was assigned to share a cell with Brunton. When Christopher entered the cell, Brunton "star[ed] [him] down." Seeing that Brunton already had the top bunk, Christopher placed his bedding on the bottom bunk and his toiletries on an adjacent desk.

         Brunton said, "Don't put your fuckin' stuff there. I stand there to get up on the bed." Christopher apologized, adding, "You don't have to be so rude about it." Brunton replied, "You calling me rude?" Christopher responded, "No, I'm not calling you rude. I said you don't have to be so rude about it, though." Christopher got into his bunk and pulled his blanket over his head.

         Brunton then punched Christopher hard twice in the back of his head and asked, "You calling me rude?" Christopher responded, "No, man. I want to get the fuck out of here. What are you doing?" He got out of bed and started pushing a button by the cell door to summon a guard. Christopher added, "All I want to do is eat breakfast." Brunton responded, "It's going to be hard to eat without no teeth.... I'm going to kill you today. I'm going to murder you.... You're going to meet Jesus today." Christopher kept pressing the call button, but no one responded-the communication device in this cell apparently was inoperative.

         Brunton kicked and kneed Christopher in the ribs. Christopher screamed for the guards to help him. Brunton grabbed a bath towel, twisted it tightly like a rope, and wrapped it around Christopher's neck. Brunton kneed Christopher in the ribs, dropping him to his knees. Brunton kneed him again and cinched the towel tight. Christopher could not breathe and was "on the cusp of going unconscious." He thought he was going to die.

         A guard heard Christopher's "desperate, ... urgent" yelling, and investigated. The guard observed Brunton standing over and forcefully choking Christopher with a towel. Christopher was "completely limp" and appeared to be unconscious. The guard banged on the cell door with his flashlight and ordered Brunton to let go of Christopher and back away. Brunton did not comply. The guard opened the food port on the cell door and repeated his commands. Again, Brunton did not comply.

         The guard radioed to the guard tower to have the cell door opened. With the door open, the guard pointed his Taser at Brunton and ordered him to let go of Christopher. Brunton let go and backed away. The guard ordered Brunton to get on the floor, but Brunton instead stepped on the desk and climbed into his top bunk.

         The guard dragged Christopher out of the cell, and another guard handcuffed Brunton and escorted him out of the cell. Christopher was removed from the housing module by gurney and transported to a hospital for medical evaluation.

         Charges, Jury Verdicts, and Sentencing

         In the operative amended information, the San Diego County District Attorney charged Brunton with four counts stemming from these events: attempted murder (§§ 187, subd. (a), 664); force-likely assault (§ 245(a)(4)); assault with a deadly weapon (§ 245(a)(1)); making a criminal threat (§ 422); and resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1)). The amended information included allegations that Brunton personally used a deadly weapon in his commission of the force-likely assault (§ 12022, subd. (b)(1)), and had one prison prior (§ 667.5, subd. (b)).

         After deliberating for about six hours, the jury found Brunton not guilty of attempted murder, and guilty of the remaining counts. The jury found true the deadly-weapon-use ...


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