California Court of Appeal Jan 5, 2016 No. E062052Unpublished
Filed 1/5/16 P. v. Vestervelt 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E062052
v. (Super.Ct.No. SICRF1456247)
ROBERT WILLIAM WESTERVELT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. David L. DeVore, Judge.
Affirmed.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and A. Natasha Cortina and Scott
C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Based on a continuous assault on his girlfriend outside their home, a jury
convicted defendant and appellant, Robert William Westervelt, of three offenses: in
count 2, willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd.
“based on separate and distinct acts of theft, even if committed pursuant to a single
overarching scheme.”]; People v. Kirvin, supra, at p. 1518 [defendant convicted of 10
counts of attempting to dissuade a witness based on the same impulse, intention, or
plan].) A judicially created exception to this rule prohibits conviction of both a greater
and a lesser included offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
However, if the defendant’s convictions arise from separate counts and the charged
offenses differ in their necessary elements, this judicially created exception does not
apply. (People v. Gonzalez (2014) 60 Cal.4th 533, 539; People v. Craig (1941) 17 Cal.2d
453, 457.) In fact, a defendant can be charged with, and convicted of, both a lesser and
greater included offense in separate counts, as section 654 ensures that the defendant is
not punished twice for the same course of conduct. (People v. Schueren (1973) 10 Cal.3d
553, 561 [defendant charged and convicted of both §§ 217 (assault with a deadly weapon
with intent to commit murder) and 245 (assault with a deadly weapon) even though § 245
is a lesser included offense of § 217]; People v. Liakos (1982) 133 Cal.App.3d 721, 724;
see In re Jose H. (2000) 77 Cal.App.4th 1090, 1095 [enhancements are not considered for
determining lesser included or necessarily included offenses].) Since defendant’s
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convictions arose from separate counts, and because the charged offenses (assault with a
deadly weapon in count 3 and GBI assault in count 4) differ in their necessary elements,
the prohibition against multiple convictions for lesser and greater included offenses does
not apply.
In Kirvin, the court held that, “as a general matter, a criminal defendant can suffer
multiple convictions for a single criminal act or series of related criminal acts.” (People
v. Kirvin, supra, 231 Cal.App.4th at p. 1517.) The court acknowledged that, based on the
holding in People v. Whitmer, supra, 59 Cal.4th at pages 740 and 741, a defendant could
sustain multiple convictions “based on separate and distinct acts of theft, even if
committed pursuant to a single overarching scheme.” (People v. Kirvin, supra, at p.
1518.) The Kirvin court also recognized that a defendant could be convicted of multiple
counts of theft, vandalism, fraud, forgery, burglary, sex crimes, corporal injury on a
spouse, and identity theft, even if “the crimes are part of the same impulse, intention or
plan.” (Ibid.) The court concluded that the “already existing rule prohibiting double
punishment” ensures that a “defendant[] who engage[d] in conduct that technically
constitutes two crimes but practically constitutes one” does not grant wrongdoers a
“‘felony discount’ by assuring them only one conviction for a potentially limitless
number of related offenses . . . .” (Id. at p. 1519.)
Defendant was charged with and convicted of separate assaults: assault with a
deadly weapon in count 3 and GBI assault in count 4. Based on section 954 and the
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holdings of Whitmer and Kirvin, defendant committed a series of related criminal acts
and was properly charged with and convicted of both counts 3 and 4.
Defendant argues that the People, in its closing, included the use of the pipe as one
of the instrumentalities used to commit the GBI assault. Thus, defendant contends he
cannot be convicted of both counts 3 and 4. However, what counsel said during closing
argument is not evidence. (Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174,
180.) More importantly, we must presume that the jury relied on the instructions
provided to it by the trial court, not the arguments of counsel, in reaching its decision.
(People v. Morales (2001) 25 Cal.4th 34, 47 [any errors in closing argument were cured
by the court’s instructions that the jury was to follow its instructions over arguments of
counsel].)
Here, the trial court instructed the jury that witness testimony and exhibits
admitted into evidence, not the attorneys’ questions, statements, arguments, and remarks,
constituted evidence. The court also instructed the jury as to the elements of assault with
a deadly weapon, assault with force likely to produce GBI, and simple assault as a lesser
crime to counts 3 (simple assault) and 4 (assault by means of force likely to produce
GBI). Thus, we reject defendant’s reliance on what the prosecutor may have said in his
closing argument, as we presume the jury reached its verdict based on the instructions
provided to it by the trial court.
The parties agree that no unanimity instruction was required. A unanimity
instruction is not required where the case falls within the “continuous course of conduct”
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exception. This exception applies where multiple methods of assault constituted one
prolonged assault (People v. Robbins (1989) 209 Cal.App.3d 261, 266) and where the
criminal acts are closely connected in time such that they formed part of one transaction
(People v. Maury (2003) 30 Cal.4th 342, 423; 5 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Criminal Trial, § 729, pp. 1133-1134). Where the evidence shows only a
single discrete crime but leaves room for disagreement as to exactly how that crime was
committed, the jury need not unanimously agree on the basis or theory whereby the
defendant is guilty. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “In deciding
whether to give the instruction, the trial court must ask whether (1) there is a risk the jury
may divide on two discrete crimes and not agree on any particular crime, or (2) the
evidence merely presents the possibility the jury may divide, or be uncertain, as to the
exact way the defendant is guilty of a single discrete crime. In the first situation, but not
the second, it should give the unanimity instruction.” (Id. at p. 1135 [a unanimity
instruction was not required for the jury to determine which overt act it could rely on to
convict the defendant of conspiracy].)
The jury convicted defendant in count 3 of simple assault, as a lesser included of
the charged offense of assault with a deadly weapon. It convicted defendant in count 4 of
GBI assault. The record is clear that there was no “risk the jury may divide on two
discrete crimes” or that the jury may be divided or uncertain as to the exact way the
defendant committed GBI assault. The charging document charged defendant in count 3
with assault with a deadly weapon based on his use of a metal pipe. The jury was
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instructed separately as to the elements of assault with a deadly weapon, GBI assault, and
simple assault as a lesser included offense of both assault with a deadly weapon and GBI
assault. The signed verdict form was also clear that the jury was finding defendant guilty
of simple assault as a lesser included offense to the count 3 charge of assault with a
deadly weapon. Lastly, the jury made clear that, in convicting defendant of GBI assault,
it was not making a special finding that defendant “personally use[d] a deadly and
dangerous weapon, to wit a metal pipe.” On these bases, the jury convicted defendant of
GBI assault based on his use of his hands and feet, not based on his use of the metal pipe.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING Acting P. J.
We concur:
MILLER J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. A defendant may be convicted of multiple offenses arising from a single course of conduct, and convictions for a greater and lesser included offense are permissible when charged in separate counts.
Issues
Whether a defendant can be convicted of multiple offenses arising from a single continuous course of conduct.
Whether convictions for simple assault and GBI assault violate the prohibition against dual convictions for greater and lesser included offenses.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“a criminal defendant can suffer multiple convictions for a single criminal act or series of related criminal acts.”
“a defendant can be charged with, and convicted of, both a lesser and greater included offense in separate counts”