Filed 1/5/16 P. v. Vestervelt CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062052

v.                                                                       (Super.Ct.No. SICRF1456247)

ROBERT WILLIAM WESTERVELT,                                               OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Inyo County. David L. DeVore, Judge.

Affirmed.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Scott

C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

       Based on a continuous assault on his girlfriend outside their home, a jury

convicted defendant and appellant, Robert William Westervelt, of three offenses: in

count 2, willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd.

(a));1 in count 3, simple assault (§ 240), as a lesser included offense of the charged

offense of assault with a deadly weapon, a pipe (§ 245, subd. (a)(1)); and in count 4,

assault by means of force likely to produce great bodily injury (GBI assault) (§ 245, subd.

(a)(4)). The jury also found that defendant personally inflicted great bodily injury (GBI)

on the victim in counts 2 and 4. (§ 12022.7, subds. (a), (e).) The evidence showed

defendant punched and kicked the victim with his hands and feet, both before and after he

poked and prodded her legs with a pipe as she lay under a car. Defendant was sentenced

to four years’ probation, plus 180 days in local custody for his simple assault conviction

in count 3 concurrent. The jury acquitted defendant of attempted murder (§§ 664, 187) in

count 1.

       On appeal, defendant claims his simple assault conviction in count 3 must be

reversed for two reasons: (1) the conduct underlying the offense was part of the same

course of conduct underlying his conviction in count 4 for GBI assault, and (2) his

convictions in counts 3 and 4 violate the prohibition against convictions for both greater

and lesser included offenses based on the same conduct. (§ 954.)




       1   All further statutory references are to the Penal Code unless otherwise indicated.

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       We conclude that defendant was properly convicted of both simple assault (§ 240)

and GBI assault (§ 245, subd. (a)(1)) because a criminal defendant can suffer multiple

convictions for a series of related criminal acts. We also hold that the convictions for

simple assault and GBI assault stem from different charged counts, which is permissible

and do not violate the prohibition against convictions for lesser and greater included

offenses. As discussed, post, defendant’s convictions do not violate section 954. We

affirm the judgment.

                                   II. BACKGROUND

       On February 2, 2014, defendant was involved in a physical altercation with the

victim. As a result of the altercation, the victim sustained a bloody nose, a black eye, and

bruises on her neck, legs, and back.

       Defendant’s neighbor, who was also his aunt, witnessed the altercation and called

911. During the 911 call, the neighbor told the dispatcher that defendant was punching

and kicking the victim. After the victim managed to roll under a truck, defendant

continued to kick her in the legs. He then picked up a pipe from a nearby carport and

started poking and prodding the victim’s legs with the pipe. Defendant subsequently

went under the truck and, using his fists, struck the victim repeatedly in her upper body.

According to the neighbor, the victim appeared to be unconscious by the time defendant

went underneath the truck and continued his assault upon her. Defendant dragged the

victim from underneath the truck and poured a liquid on her, which the neighbor believed




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to be lighter fluid. This allegation was never verified by investigating officers.

Defendant was arrested several hours later.

       At trial, the People argued that the assault constituted one continuous course of

conduct; the People presented its case as a single crime under distinct theories of

attempted murder, infliction of corporal injury on a cohabitant, assault with a deadly

weapon, and assault with means likely to cause GBI.

                                    III. DISCUSSION

       Defendant contends his convictions for simple assault (§ 240, count 3) and GBI

assault (§ 245, subd. (a)(4), count 4) violate the prohibition against multiple convictions

for multiple acts arising from a continuous course of conduct. Alternatively, he contends

these convictions violate the prohibition against dual convictions for greater and lesser

included offenses. Thus, he contends his conviction for simple assault must be reversed.

We reject defendant’s contentions and affirm the judgment.

       In determining whether multiple convictions arising out of a single act and

continuous course of conduct are proper, we apply a de novo standard of review. (People

v. Jones (2001) 25 Cal.4th 98, 103; People v. Villegas (2012) 205 Cal.App.4th 642, 646.)

The same standard of review applies in determining whether one offense is a lesser

included offense of another. (People v. Licas (2007) 41 Cal.4th 362, 366; People v.

Ortega (2015) 240 Cal.App.4th 956, 965.)

       In general, a person may be convicted of more than one crime arising out of the

same act or course of conduct. (§ 954; People v. Reed (2006) 38 Cal.4th 1224, 1226.)


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“[A] criminal defendant can suffer multiple convictions for a single criminal act or series

of related criminal acts. [Citations.]” (People v. Kirvin (2014) 231 Cal.App.4th 1507,

1517.) The conviction can be based on the same course of conduct, arise out of one

incident, and be based on a singular intent or a single overarching scheme. (People v.

Whitmer (2014) 59 Cal.4th 733, 740-741 [defendant could sustain multiple convictions

“based on separate and distinct acts of theft, even if committed pursuant to a single

overarching scheme.”]; People v. Kirvin, supra, at p. 1518 [defendant convicted of 10

counts of attempting to dissuade a witness based on the same impulse, intention, or

plan].) A judicially created exception to this rule prohibits conviction of both a greater

and a lesser included offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)

However, if the defendant’s convictions arise from separate counts and the charged

offenses differ in their necessary elements, this judicially created exception does not

apply. (People v. Gonzalez (2014) 60 Cal.4th 533, 539; People v. Craig (1941) 17 Cal.2d

453, 457.) In fact, a defendant can be charged with, and convicted of, both a lesser and

greater included offense in separate counts, as section 654 ensures that the defendant is

not punished twice for the same course of conduct. (People v. Schueren (1973) 10 Cal.3d

553, 561 [defendant charged and convicted of both §§ 217 (assault with a deadly weapon

with intent to commit murder) and 245 (assault with a deadly weapon) even though § 245

is a lesser included offense of § 217]; People v. Liakos (1982) 133 Cal.App.3d 721, 724;

see In re Jose H. (2000) 77 Cal.App.4th 1090, 1095 [enhancements are not considered for

determining lesser included or necessarily included offenses].) Since defendant’s


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convictions arose from separate counts, and because the charged offenses (assault with a

deadly weapon in count 3 and GBI assault in count 4) differ in their necessary elements,

the prohibition against multiple convictions for lesser and greater included offenses does

not apply.

       In Kirvin, the court held that, “as a general matter, a criminal defendant can suffer

multiple convictions for a single criminal act or series of related criminal acts.” (People

v. Kirvin, supra, 231 Cal.App.4th at p. 1517.) The court acknowledged that, based on the

holding in People v. Whitmer, supra, 59 Cal.4th at pages 740 and 741, a defendant could

sustain multiple convictions “based on separate and distinct acts of theft, even if

committed pursuant to a single overarching scheme.” (People v. Kirvin, supra, at p.

1518.) The Kirvin court also recognized that a defendant could be convicted of multiple

counts of theft, vandalism, fraud, forgery, burglary, sex crimes, corporal injury on a

spouse, and identity theft, even if “the crimes are part of the same impulse, intention or

plan.” (Ibid.) The court concluded that the “already existing rule prohibiting double

punishment” ensures that a “defendant[] who engage[d] in conduct that technically

constitutes two crimes but practically constitutes one” does not grant wrongdoers a

“‘felony discount’ by assuring them only one conviction for a potentially limitless

number of related offenses . . . .” (Id. at p. 1519.)

       Defendant was charged with and convicted of separate assaults: assault with a

deadly weapon in count 3 and GBI assault in count 4. Based on section 954 and the




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holdings of Whitmer and Kirvin, defendant committed a series of related criminal acts

and was properly charged with and convicted of both counts 3 and 4.

       Defendant argues that the People, in its closing, included the use of the pipe as one

of the instrumentalities used to commit the GBI assault. Thus, defendant contends he

cannot be convicted of both counts 3 and 4. However, what counsel said during closing

argument is not evidence. (Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174,

180.) More importantly, we must presume that the jury relied on the instructions

provided to it by the trial court, not the arguments of counsel, in reaching its decision.

(People v. Morales (2001) 25 Cal.4th 34, 47 [any errors in closing argument were cured

by the court’s instructions that the jury was to follow its instructions over arguments of

counsel].)

       Here, the trial court instructed the jury that witness testimony and exhibits

admitted into evidence, not the attorneys’ questions, statements, arguments, and remarks,

constituted evidence. The court also instructed the jury as to the elements of assault with

a deadly weapon, assault with force likely to produce GBI, and simple assault as a lesser

crime to counts 3 (simple assault) and 4 (assault by means of force likely to produce

GBI). Thus, we reject defendant’s reliance on what the prosecutor may have said in his

closing argument, as we presume the jury reached its verdict based on the instructions

provided to it by the trial court.

       The parties agree that no unanimity instruction was required. A unanimity

instruction is not required where the case falls within the “continuous course of conduct”


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exception. This exception applies where multiple methods of assault constituted one

prolonged assault (People v. Robbins (1989) 209 Cal.App.3d 261, 266) and where the

criminal acts are closely connected in time such that they formed part of one transaction

(People v. Maury (2003) 30 Cal.4th 342, 423; 5 Witkin & Epstein, Cal. Criminal Law

(4th ed. 2012) Criminal Trial, § 729, pp. 1133-1134). Where the evidence shows only a

single discrete crime but leaves room for disagreement as to exactly how that crime was

committed, the jury need not unanimously agree on the basis or theory whereby the

defendant is guilty. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “In deciding

whether to give the instruction, the trial court must ask whether (1) there is a risk the jury

may divide on two discrete crimes and not agree on any particular crime, or (2) the

evidence merely presents the possibility the jury may divide, or be uncertain, as to the

exact way the defendant is guilty of a single discrete crime. In the first situation, but not

the second, it should give the unanimity instruction.” (Id. at p. 1135 [a unanimity

instruction was not required for the jury to determine which overt act it could rely on to

convict the defendant of conspiracy].)

       The jury convicted defendant in count 3 of simple assault, as a lesser included of

the charged offense of assault with a deadly weapon. It convicted defendant in count 4 of

GBI assault. The record is clear that there was no “risk the jury may divide on two

discrete crimes” or that the jury may be divided or uncertain as to the exact way the

defendant committed GBI assault. The charging document charged defendant in count 3

with assault with a deadly weapon based on his use of a metal pipe. The jury was


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instructed separately as to the elements of assault with a deadly weapon, GBI assault, and

simple assault as a lesser included offense of both assault with a deadly weapon and GBI

assault. The signed verdict form was also clear that the jury was finding defendant guilty

of simple assault as a lesser included offense to the count 3 charge of assault with a

deadly weapon. Lastly, the jury made clear that, in convicting defendant of GBI assault,

it was not making a special finding that defendant “personally use[d] a deadly and

dangerous weapon, to wit a metal pipe.” On these bases, the jury convicted defendant of

GBI assault based on his use of his hands and feet, not based on his use of the metal pipe.

                                    IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                Acting P. J.


We concur:

MILLER
                          J.

CODRINGTON
                          J.




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