Filed 6/5/15 P. v. Royal 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                       E060820

v.                                                                       (Super.Ct.No. SWF1301719)

ROBERT LEE ROYAL,                                                        OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Timothy F. Freer and

Mark Mandio, Judges.* Affirmed as modified with directions.

         Allison H. Ting, under appointment by the Court of Appeal, for Defendant and

Appellant.




         *   Judge Freer presided over the trial and entered the judgment. Judge Mandio
responded to a question from the jury during its deliberations.




                                                             1
       Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff

and Respondent.

       Defendant Robert Lee Royal got into an argument with his adult sister and his 16-

year-old niece. During the argument, at least according to the victims’ statements to the

police immediately afterward, he choked his sister; he then hit his niece on the arm with a

two-by-four. At trial, the victims tried — understandably but none too convincingly — to

minimize his acts.

       A jury found defendant guilty on three counts: (1) assault by means of force likely

to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), (2) assault with a deadly

weapon (Pen. Code, § 245, subd. (a)(1)), and (3) felony child endangerment (Pen. Code,

§ 273a, subd. (a)). In a bifurcated proceeding, after waiving a jury, defendant admitted

two “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior serious

felony conviction enhancements (Pen. Code, § 667, subd. (a)). As a result, he was

sentenced to a total of 35 years to life in prison, along with the usual fines and fees.

       Defendant now contends:

       1. With respect to count 1, the trial court erred by failing to give either a

unanimity instruction or an election instruction.

       2. For purposes of count 2, there was insufficient evidence that defendant used a

deadly weapon.




                                              2
       We will reject both contentions. On our own motion, however, we will hold that

the trial court erred by staying the sentence on count 1 under Penal Code section 654,

which will result in the addition of eight years to defendant’s sentence.

                                              I

                               FACTUAL BACKGROUND

       Defendant lived in Lake Elsinore with various family members, including his

mother, his sister Sheila T., and his niece, 16-year-old S.R.

       A.     911 Calls.

       On May 11, 2013, both Sheila and S.R. made separate 911 calls.

       Sheila reported that defendant had hit S.R. S.R. similarly reported that defendant

had hit her with a piece of wood. She added that he hit her in the side and then, because

she “blocked,” on the arms.

       B.     Statements to the Police.

       Around 11:00 p.m., Deputy Chad McVay responded to the 911 calls. He took

statements from both Sheila and S.R.

       Sheila was crying, shaking, and distraught. She said that defendant had come

home drunk and gotten into an argument with her. During the argument, he “wrapped

[his hands] around her neck and . . . t[ook] her to the ground . . . .” He “squeezed her” to

the point where she “saw lights,” felt dizzy, and thought she was going to pass out. He let

go but started hitting her in the face with both hands.




                                              3
       S.R. pulled defendant off of Sheila. They managed to push him out through a door

and to lock the door. Several minutes later, however, he “busted [the door] open” and

came in. He was carrying a “two-by-four.” He raised the two-by-four “above his head

and swung a large arc[,] striking [S.R.]’s left forearm.”

       Sheila had no visible injuries to her face. Deputy McVay testified that she did

have “slight swelling around her neck.” However, he did not mention this in his report.

He also did not mention in his report that Sheila said she had been choked.

       S.R. was crying and shaking and seemed scared. She said she saw defendant on

top of Sheila, hitting her. She helped to push him into the garage and to lock the door. A

few moments later, he broke down the door, came in with a two-by-four, swung it, and hit

her on the left forearm.

       S.R. had visible “swelling” on her arm. She was treated by paramedics. They

thought her arm was broken, but she refused to have x-rays or to go to the hospital.

       Deputy McVay found that the kitchen door was damaged and there was a two-by-

four nearby. The two-by-four was admitted into evidence.

       Deputy McVay testified that he took photos of Sheila, S.R., and the damaged door.

He thought he had booked them into evidence, but he had not. He downloaded them to a

personal laptop computer but lost them when it broke several weeks later.

       C.     Statements to a Prosecution Investigator.

       When a prosecution investigator interviewed Sheila, she denied that defendant had

either choked her or hit her in the face.



                                              4
       When the same investigator interviewed S.R., she denied that defendant had

choked Sheila.

       S.R. admitted that, after the incident, members of the family talked about it and

“tried to put all of our stories together . . . .” Defendant’s mother wanted her not to say

anything about the piece of wood.

       Sheila similarly admitted that defendant’s mother had told both of them to lie to

protect defendant.

       D.     Testimony at Trial.

       At trial, Sheila denied that defendant choked her. At one point, defendant did push

her. She fell to the ground and hit her knee. She added that he did not push her very

hard; she lost her balance only because “there was water on the floor” and she “didn’t

have on very good shoes . . . .” She denied seeing defendant hit S.R.

       S.R. testified that she saw defendant and Sheila “tussling” on the floor. She denied

seeing defendant hit or choke Sheila. She grabbed defendant to break it up. She pushed

him out into the garage and locked the door.

       She denied seeing defendant come back in. Defendant did “tap” or “whack” her

on the left wrist with a piece of wood. On a scale from one to ten, the pain was a four.

S.R. claimed it hurt only “[f]or a minute.” However, she also testified that it still hurt the

next morning, although the pain at that point was only a one.

       A 14-year-old friend of S.R.’s brother saw part of the confrontation. He testified

that he saw defendant hitting S.R. and Sheila and S.R. hitting defendant. Defendant went



                                               5
into the garage. Sheila locked him out. Defendant then broke down the door. He was

holding a two-by-four. He “swung” it at S.R. and hit her near the left wrist.

                                               II

                   FAILURE TO GIVE A UNANIMITY INSTRUCTION

                                WITH RESPECT TO COUNT 1

       Defendant contends that, with respect to count 1 (assault on Sheila by means of

force likely to cause great bodily injury), the trial court erred by failing to give either a

unanimity instruction or an election instruction.

       A.      Additional Factual and Procedural Background.

       In closing argument, the prosecutor repeatedly stated that count 1 was based on

defendant’s act of choking or strangling Sheila. For example, he said: “Count 1 is

assault with force likely to cause GBI, great bodily injury, and that refers to the defendant

strangling Sheila T[.] Just so it’s clear, that is what Count 1 is about, the defendant

strangling Sheila T[.] . . .”

       The prosecutor also indicated, however, that the lesser included offense of simple

assault could be based on pushing rather than choking: “[T]hat’s the issue, if he really

choke[d] her. Because on one hand she says he didn’t choke me, but that night she said

he did. . . . But that’s what you are going to have to decide[,] did he commit the assault.

Because either he pushed her — in which case he’s guilty of simple assault — or he

actually choked her in which case he’s guilty as charged of assault with force likely.”




                                               6
       During deliberations, the jury submitted the following question: “Need

clarification on Count 1 — does the bodily injury only relate to the chocking [sic] or any

action taken by the defendant such as pushing, hitting[?]”

       With the consent of both counsel, the trial court1 instructed the jury:

       “For you to find the defendant guilty of the charge alleged in Count 1, you may

only consider the evidence that is the defendant choked, strangled, or attempted to do

either to the alleged victim. However, for you to find the defendant guilty of the lesser

included offense to Count 1, you may consider any evidence presented at trial.”

       It then started to give the general unanimity instruction, CALCRIM No. 3500, as

follows:

       “The defendant is charged in Count 1 with assault with force likely to cause great

bodily injury . . . . The People have presented evidence of more than one act to prove the

defendant committed [this] offense. You must be — to find defendant guilty — unless

you all agree that the People proved that the defendant committed at least one of these

acts and all of you agree on which act he committed —”

       At that point, however, it stopped, saying, “I just realized, this . . . applies [to] the

lesser as well.”

       It then told the jury, “[W]e’re going to break [for lunch] at this time,” adding that it

might modify the instruction after lunch.



       1      A different judge was filling in for the trial judge during deliberations.



                                                7
       Meanwhile, the trial court discussed the state of the evidence with both counsel.

Defense counsel asked the trial court to give a unanimity instruction with respect to the

lesser, but not with respect to the greater. The trial court, however, opined that it should

not give a unanimity instruction at all, because “there is one assault, one continuous

course of conduct.”

       The trial court then ruled, “I am going to tell them to disregard th[e previous]

answer, and I am going to give them a new answer.” It announced its intent to instruct

that: “You may consider any evidence admitted at trial in determining whether the offense

in Count 1 was committed.”

       Defense counsel objected, arguing that the trial court’s previous response had been

correct. The prosecutor agreed. The trial court, however, adhered to its views.

       Thus, it instructed: “I am going [to] order my answer to your question . . . stricken.

. . . And I’m going to order you not to consider my answer. And I’m also going to order

you not to consider the instruction I read, 3500.”

       In lieu of its previous instructions, it then instructed: “You may consider any

evidence admitted at trial in determining whether the defendant committed the offense

alleged in Count 1, or the lesser included offense to Count 1.”

       B.     Analysis.

       “In a criminal case, . . . the jury must agree unanimously the defendant is guilty of

a specific crime. [Citation.] Therefore, cases have long held that when the evidence

suggests more than one discrete crime, either the prosecution must elect among the crimes



                                              8
or the court must require the jury to agree on the same criminal act. [Citations.]” (People

v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence shows

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

was committed or what the defendant’s precise role was, the jury need not unanimously

agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is

guilty. [Citation.]” (Ibid.)

       Here, the evidence showed that defendant pushed Sheila, hit her in the face

(though not hard enough to cause any visible injuries), and/or choked her. Of these, only

the choking could possibly constitute assault by means of force likely to cause great

bodily injury. (See People v. Covino (1980) 100 Cal.App.3d 660, 664-665, 667-668

[choking can constitute force likely to cause great bodily injury].) We recognize that “the

crime defined may be committed without infliction of any physical injury, and even

though no blow is actually struck. [Citation.]” (People v. Wells (1971) 14 Cal.App.3d

348, 358.) Even so, there is no evidence here that the pushing or the blows to the face

were likely to cause great bodily injury. Thus, if only for this reason, the evidence

showed only one discrete instance of the greater offense of aggravated assault.

       More generally, however, even with respect to the lesser offense of simple assault,

the evidence showed only one discrete instance of the offense. In People v. Oppenheimer

(1909) 156 Cal. 733, the defendant was charged with assault with a deadly weapon. The

evidence showed that first, he struck the victim with a sash weight; then, he grabbed a

knife and cut the victim with it. (Id. at pp. 736-737.) On appeal, he argued the



                                              9
prosecution had to elect between prosecuting him for assault with the weight and assault

with the knife. The Supreme Court rejected this argument: “We think it is manifest that

there was but a single assault shown by this evidence. . . . The mere fact that two

weapons are used does not necessarily show two assaults. If one unlawfully assails

another with his two hands, first striking at him with one hand and immediately thereafter

with the other, no one would say that there were two offenses. The offense would be the

one unlawful attempt, coupled with a present ability, to commit a violent injury upon the

other’s person, and each effort made in what constituted only the same attempt to

accomplish this result would constitute only a single element of that attempt. . . . The

evidence . . . in this case tended to show one continuous transaction, one assault in which

two weapons were used.” (Id. at p. 740.)

       We therefore conclude that defendant was not entitled to a unanimity instruction

with respect to the greater or with respect to the lesser offense.

       Defendant’s underlying concern seems to be that the trial court effectively

misinstructed the jury with regard to great bodily injury. It must be remembered that the

jury had only just asked, “[D]oes the bodily injury only relate to the chocking [sic] or any

action taken by the defendant such as pushing, hitting[?]” (Italics added.) The trial court

then responded, “You may consider any evidence admitted at trial in determining whether

the defendant committed the offense alleged in Count 1 . . . .” (Italics added.) Arguably,

then, the trial court’s response implied that the jury could find that the pushing or the

hitting alone constituted force likely to cause great bodily injury.



                                              10
       We hasten to add that defendant has not expressly raised this particular argument,

and thus he has forfeited it. More fundamentally, however, we do not believe that this

would be a reasonable interpretation of the jury instructions. “‘When an appellate court

addresses a claim of jury misinstruction, it must assess the instructions as a whole,

viewing the challenged instruction in context with other instructions, in order to

determine if there was a reasonable likelihood the jury applied the challenged instruction

in an impermissible manner.’ [Citation.]” (People v. Hajek and Vo (2014) 58 Cal.4th

1144, 1217.)

       Here, the jury was generally instructed to “consider the[ instructions] together.”

(CALCRIM No. 200.) It was also instructed that “Some of these instructions may not

apply . . . . Do not assume just because I give a particular instruction that [I am]

suggesting anything about the facts. After you have decided what the facts are, follow the

instructions that do apply to the facts as you find them.” (Ibid.)

       Specifically regarding count 1, it was instructed that assault by means of force

likely to cause great bodily injury required, among other things, that “the force used was

likely to produce great bodily . . . injury . . . .” (CALCRIM No. 875.) “Great bodily

injury” was defined as “significant or substantial physical injury. It is an injury that [is]

greater than minor or moderate harm.” (Ibid.) The jury was instructed that, on count 1, it

could find defendant guilty of the lesser offense of simple assault (CALCRIM Nos. 915,

3517), the elements of which did not include great bodily injury. (CALCRIM No. 915.)




                                              11
       Consistent with these instructions, the prosecutor told the jury that, if it found that

defendant choked Sheila, it should find him guilty of assault by means of force likely to

cause great bodily injury, but if it found that he merely pushed her, it should find him

guilty of simple assault. Defense counsel argued similarly that defendant was guilty only

of the lesser included offense of simple assault because Sheila’s only injury was a scratch

on the knee and her statements that defendant choked her were not credible.

       There is no reasonable likelihood that the jury believed that the trial court’s

response to its question abrogated all of these instructions and arguments. Rather,

presumably it believed that the response meant exactly what it said — that the jury could

“consider any evidence admitted at trial in determining whether the defendant committed

the offense alleged in Count 1, or the lesser included offense to Count 1.” (Italics added.)

That is not the same as saying it could find great bodily injury based on “any evidence

admitted at trial” (much of which had nothing whatsoever to do with this issue). As the

People note, the trial court’s response “mirrored” CALCRIM No. 220, which instructed

the jury to “consider all of the evidence that was received through the entire trial.”

       We therefore conclude that the trial court did not err by failing to give a unanimity

instruction or an election instruction. Moreover, while defendant has not argued that the

trial court’s response to the jury was erroneous, we conclude that it was not.




                                              12
                                              III

      THE SUFFICIENCY OF THE EVIDENCE WITH RESPECT TO COUNT 2

                   THAT DEFENDANT USED A DEADLY WEAPON

       Defendant contends that, for purposes of count 2 (assault with a deadly weapon on

S.R.), there was insufficient evidence that the two-by-four was a deadly weapon.

       “‘“When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence — that is, evidence that is reasonable,

credible, and of solid value — from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

[Citation.] In so doing, a reviewing court “presumes in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’

[Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.)

       “‘Conflicts and even testimony which is subject to justifiable suspicion do not

justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury

to determine the credibility of a witness and the truth or falsity of the facts upon which a

determination depends.’ [Citation.] Unless it describes facts or events that are physically

impossible or inherently improbable, the testimony of a single witness is sufficient to

support a conviction. [Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.)



                                              13
       “As used in section 245, subdivision (a)(1), a ‘deadly weapon’ is ‘any object,

instrument, or weapon which is used in such a manner as to be capable of producing and

likely to produce, death or great bodily injury.’ [Citation.] Some few objects, such as

dirks and blackjacks, have been held to be deadly weapons as a matter of law; the

ordinary use for which they are designed establishes their character as such. [Citation.]

Other objects, while not deadly per se, may be used, under certain circumstances, in a

manner likely to produce death or great bodily injury. In determining whether an object

not inherently deadly or dangerous is used as such, the trier of fact may consider the

nature of the object, the manner in which it is used, and all other facts relevant to the

issue. [Citations.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)

       “One may commit an assault without making actual physical contact with the

person of the victim; because the statute focuses on use of a deadly weapon or instrument

. . . , whether the victim in fact suffers any harm is immaterial. [Citation.]” (People v.

Aguilar, supra, 16 Cal.4th at p. 1028.)

       Here, there was evidence that defendant raised a two-by-four above his head and

swung it in “a large arc,” striking S.R. on the left forearm near the wrist. A two-by-four

is approximately 2 by 4 inches when sawn and approximately 1 5⁄8 by 3 5⁄8 inches when

dressed. (<http://www.merriam-webster.com/dictionary/two-by-four>, as of May 19,

2015.) The treating paramedics thought S.R.’s arm was broken. Moreover, defendant

was drunk and presumably unable to aim well. It is reasonably inferable that, if he had

been off by only a few inches, he could have broken a hand bone or a wrist bone. If he



                                              14
had hit S.R. in the head, he could have caused a concussion or a skull fracture. In People

v. Cook (1940) 15 Cal.2d 507, the victim was killed by a single blow in the back of the

head with a two-by-four. (Id. at p. 516.) The Supreme Court noted that, under the

circumstances, the two-by-four constituted a deadly weapon. (Id. at pp. 516-517.)

       At trial, S.R. tried to play down her own injury, but it was apparent that she was

trying to protect her uncle. Thus, for example, the jury was not required to believe her

testimony that the pain from the blow was only a four out of ten.

       Finally, defendant argues that a jury should not be allowed to find that a two-by-

four constitutes a deadly weapon without expert testimony. He cites no case actually

holding that expert testimony is required. The weight and solidity of a two-by-four, and

the amount of strength that can be exerted by a man wielding such a weapon, are matters

within common knowledge. The two-by-four itself was in evidence. Thus, expert

testimony was not required. (See People v. Madaris (1981) 122 Cal.App.3d 234, 240,

disapproved on unrelated grounds in People v. Barrick (1982) 33 Cal.3d 115, 127.)

       In sum, we conclude that there was sufficient evidence that the two-by-four

constituted a deadly weapon under the circumstances of this case.

                                            IV

       THE STAY OF THE SENTENCE ON COUNT 1 UNDER SECTION 654

       In our review of the record, we have identified one sentencing error. Even though

the People have not raised it, we address it because it resulted in an unauthorized

sentence. (People v. Scott (1994) 9 Cal.4th 331, 354 & fn. 17.)



                                             15
       On count 2 (assault on S.R. with a deadly weapon), which the trial court

designated as the principal term, it imposed a sentence of 25 years to life. On count 1

(assault on Sheila by means of force likely to cause great bodily injury), it imposed a

sentence of eight years (double the upper term). On count 3 (child endangerment as to

S.R.), it imposed a sentence of twelve years (double the upper term). However, it stayed

the sentences on both count 1 and count 3, purportedly under Penal Code section 654

(section 654).

       Section 654, however, did not apply to count 1. Ordinarily, Section 654 prohibits

multiple punishment for two offenses if they were both committed incident to a single

intent and objective. (See generally People v. Capistrano (2014) 59 Cal.4th 830, 885-

886.) However, there is a “multiple victim exception” to section 654. Under this

exception, “‘the limitations of section 654 do not apply to crimes of violence against

multiple victims.’ [Citation.]” (People v. Oates (2004) 32 Cal.4th 1048, 1063.) Count 1

was a crime of violence against Sheila; count 2 was a crime of violence against S.R., a

distinct victim. Accordingly, the trial court erred by staying the sentence on count 1.

       We will modify the judgment by dissolving the stay of the sentence on count 1.

Because the original sentence was unauthorized ab initio, increasing the sentence does

not violate due process or double jeopardy. (People v. Serrato (1973) 9 Cal.3d 753, 764-

765, overruled on unrelated grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583,

fn. 1; People v. Woods (2010) 191 Cal.App.4th 269, 273; People v. Solorzano (2007) 153

Cal.App.4th 1026, 1040.)



                                             16
                                            V

                                     DISPOSITION

      The judgment is modified by dissolving the stay of the eight-year sentence on

count 1. This makes the total sentence 43 years to life in prison. The judgment as thus

modified is affirmed.

      The clerk of the superior court is directed to prepare a new sentencing minute

order and a new abstract of judgment and to forward a certified copy of the amended

abstract to the Department of Corrections and Rehabilitation.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RAMIREZ
                                                                                       P. J.

We concur:


HOLLENHORST
                          J.


CODRINGTON
                          J.




                                           17
