THE PEOPLE,
S254554
IN THE SUPREME COURT OF CALIFORNIA
August 25, 2022
Fourth Appellate District, Division One D073304; San Diego County Superior Court SCS295489
Justice Jenkins authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, Kruger, Groban, and Guerrero concurred.
After a physical altercation with her father, defendant Veronica Aguayo was charged with and convicted of both assault with a deadly weapon other than a firearm (
A defendant may be charged in an accusatory pleading with “two or more different offenses connected together in their commission” and “may be convicted of any number of the offenses charged.” (
As we explain below, the answer to this question “turns on the Legislature‘s intent in enacting these provisions, and if the Legislature meant to define only one offense, we may not turn it into two.” (Gonzalez, supra, 60 Cal.4th at p. 537.) In prior decisions involving
We reverse the Court of Appeal‘s judgment affirming both convictions.
On August 18, 2017, 43-year-old defendant Veronica Aguayo was working on her bicycle in her parents’ yard. Her 72-year-old father, Luis Aguayo (Father), turned on the sprinklers to water the plants and accidentally got defendant‘s cell phone charger wet. Each testified at trial to their version of what happened next.
Father testified that defendant began yelling expletives and “cаme at” him with a bicycle chain and lock,2 hitting him in the back. When she tried to hit him again, Father grabbed the lock and tried to wrest it from defendant‘s hands. When Father let go of the bicycle lock, defendant hit Father‘s head, arms, and chest with the lock approximately 15 times. Father grabbed the bicycle chain, and the two struggled back and forth until defendant slipped and pulled Father down on top of her. Defendant stood up and while Father was still on his knees, defendant grabbed a ceramic pot located nearby and threw it at him. It hit Father on a part of his head where he had previously had brain surgery. Father grabbed a rock to throw at defendant, but reconsidered and threw the rock away. The rock ricocheted off a nearby wall and hit defendant on the head.
As Father turned to go inside the house, defendant struck him with the bicycle chain on his chest, arms, and back. The two struggled once more over the bicycle chain, and Father wrested control of it. Defendant grabbed a rock and was about to hit Father with it, but her mother, who had appeared in the doorway, told her, “Don‘t do that.” Defendant asked Father for the bicycle chain, which Father threw back to her. Defendant then rode away on her bicycle. Father opined that during the struggle defendant struck him with the bicycle chain approximately 50 times.
Defendant‘s account of the struggle diverged from Father‘s in several respects. She testified that she acted in self-defense. Initially, she confronted Father about her wet phone charger and he said, ” ’ I do what I want to do because this is my house.’ ” Defendant then called Father a “fucking asshole,” and he started to come towards her. Fearful of Father, defendant started swinging the chain and yelled, “Get away from me.” Defendant hit Father in the head with the bicycle chain. Father charged at defendant and she hit him a second time with the bicycle lock. After he got hold of the bicycle lock, Father hit defendant‘s legs with it several times, though she did not sustain any visible injuries or bruises. According to defendant, Father threw the ceramic pot at her, not the other way around.
The trial court imposed concurrent sentences for these convictions but stayed the sentence on count 3 (forсe likely assault) under
However, it remanded to the trial court with directions to determine defendant‘s eligibility for a pretrial mental health diversion program. (See
After granting review, we subsequently dirеcted the parties to answer the following questions: Are force likely assault and assault with a deadly weapon “different statements of the same offense” for purposes of
DISCUSSION
Defendant contends that the assault with a deadly weapon count and the force likely assault count are merely different ways of stating the same offense. Assuming we agree, she posits that because these counts arose from the same set of facts, she may be convicted of only one count. We agree with defendant‘s contention.
We begin our analysis by examining legal principles that guide our determination of when multiple charges in an accusatory pleading allege different offenses or represent “different statements of the same offense” under
A. Different Statements of the Same Offense
We have also stated that
Whether statutory offenses charged in an accusatory pleading “define different offenses or merely describe different ways of committing the same offense properly turns on the Legislature‘s intent in enacting these provisions, and if the Legislature meant to define only one offense, we may not turn it into two.” (Gonzalez, supra, 60 Cal.4th at pp. 537, 538-540 [oral copulation of intoxicated person and oral copulation of unconscious person are different offenses]; see White, supra, 2 Cal.5th at pp. 354-359 [rape of intoxicated person and rape of unconscious person are different offenses]; accord, Vidana, supra, 1 Cal.5th at pp. 637, 647-649 [grand theft by larceny and grand theft by embezzlement are different statements of same offense].)
To determine such intent under the
1. Statutory language of section 245
Assault with a deadly weapon and force likely assault are separately set out in
The lower courts are divided on whether these two types of aggravated assaults are, for purposes of
Relying on Brunton, supra, defendant argues that subparagraphs (a)(1) and (a)(4) of
At the outset, we conclude that the text of
It is not dispositive, however, that assault with a deadly weapon and force likely assault are “self-contained” in separate subparagraphs with separate punishments. (Gonzalez, supra, 60 Cal.4th at p. 539.) The Penal Code supplies numerous examples of separate, “self-contained” provisions that constitute alternative means of committing a single offense. (See, e.g., Vidana, supra, 1 Cal.5th at p. 648 [though larceny (
Next, the Attorney General emphasizes that the two aggravated assaults appear to “differ in their necessary elеments.” (Gonzalez, supra, 60 Cal.4th at p. 539.) Assault with a deadly weapon requires the use of a deadly weapon or instrument, whereas force likely assault includes any application of force likely to cause great bodily injury, regardless whether any weapon or
115 [“force likely to produce great bodily injury was defendant‘s use of the deadly weapon, a knife“].)
In Aguilar, supra, we described these two offenses as “functionally identical” — except with respect to inherently dangerous weapons — in that “[b]oth the ‘weapon or instrument’ clause of the statute and the ‘force likely’ clause look to the probability or capability of рroducing great bodily injury.” (Aguilar, supra, 16 Cal.4th at p. 1033; id. at p. 1032, quoting People v. Davis (1996) 42 Cal.App.4th 806, 815 [” ‘all aggravated assaults are ultimately determined based on the force likely to be applied against a person’ “].) Thus, as we indicated in Vidana, a comparison of the offenses’ elements does “not definitively resolve” whether assault with a deadly weapon and force likely assault “are a single offense.” (Vidana, supra, 1 Cal.5th at p. 648 [“we have long held that premeditated murder and felony murder — although requiring different elements — are not distinct crimes but simply alternative means of committing the single offense of murder“].) As such, the fact that the two types of aggravated assaults are self-contained and have different elements reveals little of the Legislature‘s intent regarding this
Next, we consider
To place our evaluation of
Two years later, ostensibly in response to Murat, the Legislature added the ” ‘force likely’ clause as an alternative to the ‘deadly weapon’ clause” in former
In amending
As explained above,
Notably, our decisions in Mosley and Aguilar — indicating that former
Accordingly, we reject the Attorney General‘s argument that the 2011 amendment reflects the Legislature‘s intent to create two separate offenses for purposes of
Defendant, in our view, has the better argument.
3. The Attorney General‘s Additional Arguments
The Attorney General, for his part, does not dispute that the primary purpose of the 2011 amendment was to make it easier to identify from a judgment the conduct on which a
We are unpersuaded for several reasons. First, we assign little significance to the bill author‘s statement that the 2011 amendment sought to split former
Furthermore, as we have noted, had the Legislature sought to make them truly distinct offenses without any overlap (see ante, at pp. 10–11), it could have added language signaling this intent when it placed force likely assault in its own subdivision in 2011. By way of comparison, when the Legislature in 1982 established assault with a firearm as newly added
It stands to reason that if the Legislature had wanted to make assault with a deadly weapon and force likely assault unmistakably separate, it would have utilized this same approach with the 2011 amendment. However, when it
Next, the Attorney General asserts that other portions of
We are not persuaded that there is a singular purpose governing these amendments. For instance, the 1982 amendment adding assault with a firearm as a new crime hаd a specific punitive purpose “aimed at assuring that some time is served for offenses involving serious crimes.” (Ways and Means Staff Analysis of Assem. Bill No. 846 (1981–1982 Reg. Sess.), as amended May 6, 1981; see Stats. 1982, ch. 136, § 1; see People v. Milward (2011) 52 Cal.4th 580, 585 [“the Legislature‘s apparent purpose was to require a minimum punishment of six months’ imprisonment in county jail for aggravated assaults committed with a firearm“].) Likewise, the purpose of the 1989 amendment adding the crime of assault with a machine gun or assault weapon was to “eliminate from California society, except under limited circumstances, weapons essentially military or antipersonnel in nature which are considered to pose an intolerable threat to the well-being of the citizens of this state.” (Sen. Com. on Judiciary, Analysis on Sen. Bill No. 292 (1989–1990 Reg. Sess.), as amended Feb. 27, 1989, pp. 4-5.) These substantial policy considerations for the earlier amendments that crеated new crimes stand in stark contrast to the underlying purpose of the 2011 amendment: to make “technical, nonsubstantive changes” (Legis. Counsel‘s Dig., Assem. Bill No. 1026 (2011-2012 Reg. Sess.)) and “not [to] create any new felonies or expand the punishment for any existing felonies” (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.) as introduced Feb. 18, 2011, p. 2). In
short, we perceive no legislative intent mandating that the internal structure of
The Attorney General also relies on the fact that assault with a deadly weapon is classified as a serious felony (
For instance, the mere inclusion of assault with a deadly weapon as a serious felony under
Nor do the strike consequences for a serious felony classification make assault with a deadly weapon an offense distinct from force likely assault for purposes of
Nor do we agree with the Attorney Genеral that our holding requires that the jury be informed that a conviction for assault with a deadly weapon, but not for force likely assault, is considered a “serious” felony. That a defendant should be punished “under the provision that provides for the longest potential term of imprisonment” (former
Lastly, we are unpersuaded by the Attorney General‘s policy arguments based on
We likewise find unavailing the Attorney General‘s related policy argument permitting “an alternative conviction [that] may prevent the defendant from otherwise escaping justice” if one of the convictions is overturned. (See People v. Gonzalez (2008) 43 Cal.4th 1118, 1128–1129.) Because force likely assault and assault with a deadly weapon are the same offense for purposes of
Having carefully considered the Attorney General‘s arguments, we find ample support for our conclusion that assault with a deadly weapon and force likely assault are “different statements of the same offense” (
B. Same or Separate Acts
We now turn to the Attorney General‘s assertion that
Defendant contends that the jury made no finding of fact that there were separate acts supporting the
We agree with defendant that the jury did not make a finding of fact identifying which act supported which specific count. It did not make such finding because it was never asked to do so by way of the prosecution‘s argument, a unanimity instruction, or the like. (See People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) The prosecution did not identify the particular act supporting each aggravated assault, and it did little to differentiate between the two counts. For example, the charging allegation and verdict form did not specify the act of force defendant used to commit the force likely assault. The respective jury instructions (listing the element of whethеr “[t]he defendant did an act [with a deadly weapon other than a firearm] that by its nature would directly and probably result in the application of force to the person“) also did not identify what act defendant committed for each count. (See ante, at p. 10, fn. 4.)
During closing argument, the prosecution referred to defendant hitting Father with the bicycle chain to establish both the assault with a deadly weapon and force likely assault counts. At the same time, with regard to the force likely assault count, the prosecution referred to defendant using both the bicycle chain and the ceramic pot to assault Father.
Without conclusively determining the standard of prejudice applicable in this context, we are persuaded that there is a reasonable probability the jury would have convicted defendant of one or the other assault offense, rаther than both, had the jury been instructed that the two offenses could not be based on the same act or course of conduct. (People v. Watson (1956) 46 Cal.2d 818, 836.) The record demonstrates that the prosecution and defense counsel viewed the offenses as essentially identical and based on the same act or course of conduct, which may in turn explain the absence of an unanimity instruction. (See Jennings, supra, 50 Cal.4th at p. 679 [“no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ “].) Given this shared understanding, it is reasonably probable that the jury understood the offenses in the same way.8
Nor are we, as a reviewing court, at liberty to accept the Attorney General‘s invitation to determine whether “the record as a whole provides an ample basis on which to conclude that the jury found two separate acts beyond a reasonable doubt based on [defendant‘s] admissions.” It is axiomatic that criminal defendants are constitutionally entitled to “a jury determination that [they are] guilty of every element of the crime with which [they are] charged, beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 477.) Here, there is a reasonable probability that the jury would have convicted defendant of only one, and not both, aggravated assault offenses. In this circumstance, we cannot affirm based on our own view of what the evidence would support. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280 [“The Sixth Amendment requires more than appellate speculation about a hypothetical jury‘s action“].) Further, defendant‘s admission that she struck Father at least two times with the bicycle chain does not inexorably show that the jury relied on separate acts in reaching its guilty verdicts.
Last, we reject the Attorney General‘s assertion that a reviewing court‘s authority to make such a finding to support the convictions is akin to a sentencing court‘s determination whether to impose concurrent or consecutive sentences under
CONCLUSION AND DISPOSITION
Based
We therefore reverse the Court of Appeal‘s judgment аnd remand the matter for proceedings consistent with this opinion. (See Vidana, supra, 1 Cal.5th at p. 651, fn. 18 [“we express no opinion on whether striking the larceny conviction or the embezzlement conviction or consolidating the two convictions is the proper remedy“]; see, e.g., People v. Craig (1941) 17 Cal.2d 453, 458-459, overruled on another point in White, supra, 2 Cal.5th at p. 359.)
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
GUERRERO, J.
Notes
Further, based on our holding that these two types of aggravated assaults are alternative means of committing the same offense, we need not determine whether force likely assault is a lesser included offense of assault with a deadly weapon.