California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of San Diego County,
No. SCD267484 Laura Halgren, Judge. Affirmed, as modified,
S. Lubliner, under appointment by the Court of Appeal, for
Defendant and Appellant.
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.
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,  § 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)). 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
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
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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.
Jury Verdicts, and Sentencing
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,
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 ...