72 Cal.App.5th 579
Cal. Ct. App.2021Background:
- After last call outside a Palm Desert bar, defendant Charles Waxlax stabbed Erik Kimbler with a Ka-Bar combat knife; Kimbler survived serious chest injuries and spent weeks in a coma.
- Waxlax claimed he acted in self-defense, believing he was being robbed and fearing the attackers were armed; he testified he grabbed a knife and brandished it before the stabbing.
- Jury rejected self-defense and convicted Waxlax of attempted murder (with a deadly weapon), assault with a deadly weapon, assault with force likely to produce great bodily injury, and attempting to dissuade a witness; sentence: 11 years (9 years for attempted murder, 2 years for dissuading); assault terms stayed under § 654.
- On appeal Waxlax argued instructional error (failure to give CALCRIM No. 3470, transferred self-defense, and robbery pinpoint language in CALCRIM No. 505) and that the two assault convictions violated Penal Code § 954 because they are different statements of the same offense based on one stabbing.
- Court held instructional claims meritless / harmless but agreed the dual assault convictions violated § 954 and vacated the force-likely assault conviction (count 2) and associated fees; otherwise affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions for assault with a deadly weapon (§ 245(a)(1)) and assault by force likely to produce great bodily injury (§ 245(a)(4)) based on the same stabbing violate § 954 | Both convictions valid; statutes are separately numbered and prosecutions may charge both | Dual convictions are multiple convictions for different statements of the same offense when based on the same act, violating § 954 | Vacated the force-likely assault conviction; two forms are different statements of same offense when based on the same act, so dual conviction impermissible |
| Failure to instruct with CALCRIM No. 3470 (self-defense for nonhomicide offenses) | Instruction on attempted murder (CALCRIM No. 505) adequately covered self-defense principles applicable here | Omission deprived jury of correct nonhomicide self-defense guidance and was reversible error | Omission harmless: evidence did not implicate the narrower assault/self-defense distinction; CALCRIM No. 505 sufficiently covered defendant’s theory |
| Failure to give transferred self-defense instruction | Not warranted because record shows defendant feared both men and defended against both | Instruction required because defendant might have defended against Contreras and accidentally stabbed Kimbler | No instruction required: testimony did not support a theory that only Contreras was perceived as the threat; no transferred-self-defense scenario shown |
| Omission of robbery pinpoint language in CALCRIM No. 505 (optional bracketed text) | Omission harmless because defendant ‘‘robbery’’ theory was presented in testimony and closing; optional language not required sua sponte | Omission was reversible and counsel’s failure to request it could be ineffective assistance | Harmless: robbery theory was fully presented in testimony/argument; adding pinpoint language would not have changed outcome |
Key Cases Cited
- People v. Vidana, 1 Cal.5th 632 (California Supreme Court) (framework for when separate statutes/statements constitute same offense under § 954)
- People v. Brunton, 23 Cal.App.5th 1097 (California Court of Appeal) (held dual § 245(a)(1) and (a)(4) convictions violate § 954 when based on same act)
- People v. Cota, 44 Cal.App.5th 720 (California Court of Appeal) (agreed Brunton; examined history and legislative intent re § 245)
- In re Jonathan R., 3 Cal.App.5th 963 (California Court of Appeal) (concluded separate subdivisions created separately convictable offenses; contrasted by Brunton/Cota)
- In re Mosley, 1 Cal.3d 913 (California Supreme Court) (historical view that aggravated assault statute formerly presented two ways to commit one offense)
- People v. Aguilar, 16 Cal.4th 1023 (California Supreme Court) (discussed functional identity of jury decision-making under aggravated assault formulations)
- People v. Breverman, 19 Cal.4th 142 (California Supreme Court) (sua sponte duty to instruct on general legal principles tied to the evidence)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court) (standard for ineffective assistance of counsel)