People v. Brunton
233 Cal. Rptr. 3d 686
| Cal. Ct. App. 5th | 2018Background
- In May 2016 Brunton choked his cellmate Christopher with a tightly rolled towel after punching, kicking, and threatening him; a guard intervened and Christopher was hospitalized.
- Brunton was charged with attempted murder, assault by means likely to produce great bodily injury (Pen. Code § 245(a)(4)), assault with a deadly weapon (Pen. Code § 245(a)(1)), making criminal threats, and resisting arrest; a deadly-weapon-use enhancement (§ 12022(b)(1)) and a prison prior were alleged.
- Jury convicted Brunton of the two assault counts (acquitting on attempted murder), found the deadly-weapon-use enhancement true, and he admitted the prison prior.
- Trial court sentenced Brunton to an aggregate six-year term (four years for force-likely assault, one year for the deadly-weapon enhancement, one year for the prison prior), and stayed a concurrent four-year term for assault with a deadly weapon under § 654.
- On appeal Brunton argued the two assault convictions were duplicative (different statements of the same offense under § 954) and the deadly-weapon enhancement must be stricken because weapon use was an element of the offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether convictions under § 245(a)(1) (assault with a deadly weapon) and § 245(a)(4) (force-likely assault) based on the same act may both stand | Brunton: convictions are duplicative — different statements of the same offense arising from a single act — so only one conviction may stand under § 954 | AG: post-2011 statutory separation creates distinct offenses permitting multiple convictions | Court: Vacated one duplicative conviction. When a noninherently dangerous object is used in a manner likely to cause great bodily injury, the two subdivisions are different statements of the same offense and only one conviction may stand. |
| Whether the § 12022(b)(1) deadly-weapon-use enhancement may attach when the underlying conviction necessarily includes weapon use | Brunton: enhancement invalid because weapon use is an element of the single offense | AG: enhancement applied at trial and found true | Court: Struck enhancement — enhancement not applicable where use of a deadly weapon is an element of the offense. |
Key Cases Cited
- People v. Vidana, 1 Cal.5th 632 (2016) (different statutory statements that derive from the same conduct may be only one offense under § 954)
- People v. Gonzalez, 60 Cal.4th 533 (2015) (statutory subdivisions drafted as self-contained offenses may permit multiple convictions)
- People v. Aguilar, 16 Cal.4th 1023 (1997) (noninherently dangerous object is a deadly weapon only when used in a manner likely to produce death or great bodily injury)
- In re Mosley, 1 Cal.3d 913 (1970) (former § 245(a)(1) construed as a single offense encompassing both deadly-weapon and force-likely theories)
- People v. McGee, 15 Cal.App.4th 107 (1993) (where deadly-weapon use is an element of the assault, a separate deadly-weapon enhancement cannot attach)
- Jonathan R. v. Superior Court, 3 Cal.App.5th 963 (2016) (court previously found separate § 245 subdivisions permit distinct convictions; declined to follow in light of Vidana and legislative history)
- In re C.D., 18 Cal.App.5th 1021 (2017) (discusses former § 245 construction and its treatment as a single offense)
Disposition: Remanded to vacate one of the duplicative assault convictions, strike the one-year deadly-weapon enhancement, and resentence consistent with the opinion; otherwise judgment affirmed.