THE PEOPLE, Plaintiff and Respondent, v. JESSE CODY TOM, Defendant and Appellant.
C083983
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 4/13/18
CERTIFIED FOR PUBLICATION; (Super. Ct. No. 15F04095)
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of two counts of animal cruelty (
Defendant does not dispute the facts underlying his convictions, but on appeal he contends that he could not be convicted of violating subdivision (a) and subdivision (b) of
Based on the plain language of
Defendant does not dispute the evidence, which when viewed in the light most favorable to the judgment, may be summarized as follows:
Robbyn and John owned a small dog named Bailey. When John had to have surgery, they sent the dog to stay with their daughter, Vanessa. At the time, Vanessa was dating defendant; they lived together in Elk Grove.
On July 8, 2015, the neighbor living in the house behind defendant‘s home heard a dog crying in distress and banging sounds against the fence. The neighbor estimated that he heard the dog crying or screaming for about five to seven minutes. His mother called police. A short time later, the neighbor saw an individual run across his backyard and hop the fence into another neighbor‘s backyard.
Elk Grove police officers responded to the call that a dog was being beaten in defendant‘s backyard. Defendant answered the front door when officers knocked. He appeared to have blood on his hand and leg. When asked if there was a dog at the house, defendant claimed there was not. After being asked about the blood on his leg, defendant slammed the door shut and locked it.
Several officers entered the backyard through a side gate to check on the welfare of the dog. They saw multiple dog dishes, water bowls, and dog beds. The back door to the house was open, and officers could hear the sound of glass breaking and a smoke alarm inside the house. Smoke began billowing out the back door. When officers identified themselves as Elk Grove police officers, the back door slammed shut.
A few minutes later, defendant fled from the house, jumping over multiple fences. He was apprehended in a nearby yard and arrested following a struggle with officers. Officers then searched the house, but did not locate any people or animals in the home.
Inside, a kitchen stove burner was set to medium and there was white powder, bread, and an oily substance on the burner that were on fire. One of the stove knobs had blood on it. A broken wine bottle and an empty bottle of oil with blood smears were also
An officer searching the backyard located a deceased small dog, later identified as Bailey, inside a Weber charcoal grill. The dog was lying below the metal grate of the grill.
Defendant was charged in a November 2016 amended information with two counts of animal cruelty (
At trial, veterinarian William Spangler, the prosecution‘s necropsy and pathology expert, testified about the autopsy he performed on Bailey. Bailey weighed 12 pounds and her fur was matted down and covered with olive oil and charcoal dust. Bailey suffered nine lacerations, including one that caused a notch in the top of her skull. Bailey‘s wounds were consistent with being stabbed by a broken bottle or broken glass. Bailey also suffered hemorrhaging around her neck, consistent with strangulation. Bailey‘s oral cavity was coated with blood, which was likely the result of a struggle. The dog had several chipped teeth and a rear molar was found in her stomach. Plant tissue was found in Bailey‘s lungs, indicating that she had vomited and then inhaled. In Dr. Spangler‘s opinion, five factors contributed to Bailey‘s death: strangulation, stab wounds, pulmonary emphysema caused by inhaling material that did not belong in the lungs, choking on foreign material inhaled during the struggle, and a preexisting enlarged heart.
The jury found defendant guilty of counts one through four and found true the deadly weapon enhancement. Defendant was found not guilty of count five. After waiving his right to a jury trial on the prison prior allegation, the court found the allegation true.
The court sentenced defendant to an aggregate term of five years eight months in state prison calculated as follows: the upper term of three years for count one plus a consecutive one-year term for personally using a deadly weapon during the offense; the middle term of two years for count two, stayed pursuant to
II. DISCUSSION
A. Section 597
Defendant challenges his
“Our primary task in interpreting a statute is to determine the Legislature‘s intent, giving effect to the law‘s purpose.” (Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) We begin with the language of the statute as the most reliable indicator of intent. We construe terms in context, harmonizing the statutes both internally and with each other to the extent possible. (Ibid.) Interpretations that render absurd results or cause words to be mere surplusage are to be avoided. (Ibid.) When the language is clear, we need not resort to other indicia of legislative intent. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) We do not presume the Legislature meant to overthrow long-established principles of law, unless such an intention is clearly expressed or necessarily implied. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1325.)
Subdivision (a) of
Subdivision (b) of
Both parties agree that subdivision (a) of
No prior California case has construed the meaning of the phrase “except as otherwise provided in subdivision (a) or (c)” found in
Delgado considered the meaning of the phrase “except as otherwise provided by law” within the context of
This court affirmed the trial court‘s ruling after finding that
Other cases have interpreted the phrase “except as otherwise provided by law” similarly. (See, e.g., Central Contra Costa Sanitary Dist. v. Superior Court (1978) 84 Cal.App.3d 702, 705 [following Delgado].) In People v. Burnick (1975) 14 Cal.3d 306, at page 314, for example, the court construed the exception in
Delgado and Burnick, we believe, provide useful guidance in construing the phrase “[e]xcept as otherwise provided in subdivision (a) or (c)” in
By contrast, in People v. Duarte (1984) 161 Cal.App.3d 438, at pages 444-446 (Duarte), the court held the defendant was properly convicted of violating both
The contrast between the statutory language in
Interpreting the statute in this manner, moreover, does not mean that a person cannot be convicted of violating both subdivisions based on separate conduct. In People v. Baniqued (2000) 85 Cal.App.4th 13, at page 16, for example, the defendant was convicted of three felony violations of
The People do not address in any meaningful way defendant‘s statutory construction argument, but instead contend that the jury could have found defendant‘s conduct in this case violated both subdivisions. They argue that the evidence showed the neighbor heard defendant torturing Bailey for five to seven minutes by hitting her with a bottle, cutting her skull, and then slamming her into a fence several times. The People characterize this conduct as torture sufficient to support defendant‘s
For count two—the unjustifiable pain and suffering charge under
Based on the prosecutor‘s argument, it is clear that the same conduct was cited as supporting convictions under both subdivisions. Because there was no unanimity instruction given, there is no way to determine from the record whether the jury in fact found that defendant intentionally choked the dog to death and negligently beat it with a broken bottle as the People now argue. Rather, after carefully reviewing the record, we believe it is more likely that the jury convicted defendant of violating
B. Section 654
Defendant contends he killed and attempted to burn Bailey‘s body during a single course of conduct, for which he may only be punished once under
In any
The record in this case supports the trial court‘s finding that the killing of Bailey and the subsequent attempt to burn her body involved multiple objectives even though
Here, defendant could have killed Bailey without trying to destroy her deceased body. In other words, the act of attempting to burn Bailey‘s body was not a means used to kill her. Instead, that act followed her death. (See, e.g., In re Chapman (1954) 43 Cal.2d 385, 389-390 [when assault is not a means of perpetrating a robbery but is an act that follows after the robbery is completed the defendant is guilty of two punishable acts].) Defendant could therefore be punished for both offenses.
That the crimes occurred in close temporal proximity does not mean that defendant did not harbor more than one criminal objective when committing the offenses. “It is defendant‘s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
Because defendant committed multiple and divisible acts with distinct objectives, the trial court did not violate
III. DISPOSITION
Defendant‘s conviction for violating
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RENNER, J.
We concur:
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HULL, Acting P. J.
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ROBIE, J.