California Court of Appeal Dec 23, 2021 No. E074347MPublished
Filed 12/23/21 (unmodified opn. attached) CERTIFIED FOR PUBLICATION COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO
THE PEOPLE, E074347 Plaintiff and Respondent, v. (Super.Ct.No. INF1600362) CHARLES KENNETH WAXLAX, Defendant and Appellant. ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT] _______________________________________
The petition for rehearing is denied. The opinion filed in this matter on December 9, 2021, is modified as follows:
In the first sentence of the last paragraph on page 13, add the words “base term” before the word “punishment” so that the sentence reads as follows:
On balance, given the history of section 245, the legislative history of the 2011 amendment, and the fact that force-likely and deadly weapon assault carry the same base term punishment, we conclude they are different statements of the same offense when they are based on the same criminal act.
Except for this modification, the opinion remains unchanged. The modification does not affect a change in the judgment.
CERTIFIED FOR PUBLICATION SLOUGH J. We concur:
McKINSTER Acting P. J.
MENETREZ J. cc: See attached list
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MAILING LIST FOR CASE: E074347 The People v. Charles Waxlax
Superior Court Clerk Riverside County P.O. Box 431 - Appeals Riverside, CA 92502
Paige Boulton Hazard Office of the State Attorney General P.O. Box 85266 San Diego, CA 92186-5266
Howard C. Cohen Appellate Defenders, Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101-2936
Appellate Defenders, Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101 2396
this language as defining “only one offense” that could be committed in two different
ways, explaining “assault by means of force likely to produce great bodily injury is not an
offense separate from—and certainly not an offense lesser than and included within—the
offense of assault with a deadly weapon.” (Id. at p. 919, fn. 5.) Though Mosley’s
language was dicta, our appellate courts found it persuasive, and for the years the statute
remained in this form, they agreed that “‘[t]he offense of assault by means of force likely
to produce great bodily injury is not an offense separate from . . . the offense of assault
with a deadly weapon.’” (People v. McGee (1993) 15 Cal.App.4th 107, 114; see also,
e.g., People v. Martinez (2005) 125 Cal.App.4th 1035, 1043 [noting “the statute describes
two different ways of committing a prohibited assault”].)
In the early 1960s, the Legislature redesignated the aggravated assault provision as
subdivision (a) of section 245. Two decades later, they further redesignated the provision,
labeling it subdivision (a)(1), but nevertheless keeping force-likely and deadly weapon
assault together as they always had been. (Jonathan R., supra, 3 Cal.App.5th at p. 968.)
And, because the two types of assault remained together, the understanding persisted that
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section 245, subdivision (a)(1) provided two alternative statements of aggravated assault.
(See People v. Aguilar (1997) 16 Cal.4th 1023, 1035 [“the jury’s decision-making
process in an aggravated assault case under section 245, subdivision (a)(1), is
functionally identical regardless of whether, in the particular case, the defendant
employed a weapon alleged to be deadly as used or employed force likely to produce
great bodily injury; in either instance, the decision turns on the nature of the force
used”].)
In 2011, the Legislature amended section 245, subdivision (a)(1) again, this time
placing force-likely and deadly weapon assault into two separate numbered paragraphs—
deadly weapon assault remained in subdivision (a)(1) and force-likely assault could now
be found in newly created subdivision (a)(4). (Assem. Bill No. 1026 (2011-2012 Reg.
Sess.); Stats. 2011, ch. 183, § 1.) The Legislature explained the amendment served a
disambiguating purpose for recidivist sentencing.
Specifically, because the “Three Strikes” law carries consequences for prior
deadly weapon assault convictions but not force-likely convictions, the Legislature
separated the two types of aggravated assault to make it readily apparent to the
prosecution and the court in potential future cases which type the defendant had been
convicted of.3 (Brunton, supra, 23 Cal.App.5th at pp. 1104-1105, citing Sen. Com. on
3 “Assault with a deadly weapon is always a serious felony for purposes of recidivist sentence enhancements (see § 1192.7, subd. (c)(31)), whereas force-likely assault is only a serious felony if the defendant actually inflicted great bodily injury (and not merely used force likely to do so) (see § 1192.7, subd. (c)(8)).” (Brunton, supra, 23 Cal.App.5th at p. 1104, fn. 5.) 10
Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.).) “AB 1026 will
make it easier for prosecutors and defense attorneys to determine whether or not a
defendant’s prior conviction for assault under . . . [s]ection 245(a)(1) involved an assault
on a person with a deadly weapon or by any means of force likely to produce great bodily
injury. . . . [¶] ‘AB 1026 does not create any new felonies or expand the punishment for
any existing felonies. It merely splits an ambiguous code section into two distinct parts.”’
(Sen. Com. on Public Safety, Analysis of Assem. Bill No. 1026 (2011-2012 Reg. Sess.)
as introduced Feb. 18, 2011, p. 3.)
As the court observed in Cota, the 2011 amendment “resurrected the question of
whether” force-likely and deadly weapon assault are still two different ways to commit
the same offense. (Cota, supra, 44 Cal.App.5th at p. 725.) The first opinion to consider
the issue was Jonathan R., which held that the new structure of section 245, subdivision
(a) conveyed such an unambiguous expression of legislative intent to “creat[e] separately
convictable offenses” that an examination of the legislative history of the 2011
amendment was unnecessary. (Jonathan R., supra, 3 Cal.App.5th at p. 971.) The court
based its conclusion on its interpretation of People v. Gonzalez (2014) 60 Cal.4th 533,
which it regarded as “[t]he Supreme Court’s latest word on the issue.” (Jonathan R., at
p. 969.) Based on that precedent, Jonathan R. reasoned that any time the Legislature
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places offenses “in separate subdivisions”—as the 2011 amendment to section 245 did—
it is “deemed to have intended to create separate offenses.”4 (Jonathan R., at p. 971.)
But a little over a month before Jonathan R., our Supreme Court issued Vidana, in
which it considered whether larceny (§ 484, subd. (a)) and embezzlement (§ 503) were
different statements of the same offense such that a defendant could not be convicted of
both based on the same course of conduct. After analyzing not just the text and structure
of the larceny and embezzlement statutes but also their legislative history, the court
concluded the statutes contained restatements of the same offense, even though they
“have different elements,” “neither is a lesser included offense of the other,” and they are
found in “self-contained” statutes. (Vidana, supra, 1 Cal.5th at p. 648.) Important to the
court’s conclusion was the fact that larceny and embezzlement “generally have the same
punishment,” and that the Legislature has directed the courts to substitute the word
“theft” for “larceny,” “embezzlement,” or “stealing” any time those words appear in the
Penal Code. (Id. at pp. 648-649, citing § 490a.)
The next two opinions to consider the connection between force-likely and deadly
weapon assault were Brunton and Cota, and both found Johnathan R.’s total reliance on
the structure of section 245, subdivision (a) unpersuasive. Following the approach taken
in Vidana, Brunton and Cota considered not only the text and structure of section 245 but
also “prior case law interpreting section 245, subdivision (a)(1), as setting forth a single
4This wasn’t the end of the court’s section 954 analysis, however. It ultimately concluded the dual assault convictions violated the statute because force-likely assault is a necessarily included offense of deadly weapon assault. (Jonathan R., supra, 3 Cal.App.5th at p. 975.) 12
aggravated assault offense,” as well as the legislative history of the 2011 amendment.
(Cota, supra, 44 Cal.App.5th at p. 728, citing Brunton, supra, 23 Cal.App.5th at p. 1107.)
Those courts concluded “the Legislature did not intend for its 2011 amendment of section
245 to create two offenses where the former statute set forth only one.” (Brunton, at
p. 1107; Cota, at p. 728.) “[W]hen based on a defendant’s single act of using a
noninherently dangerous object in a manner likely to produce great bodily injury, section
245 (a)(1) and (4) are merely different statements of the same offense such that the
defendant may not be convicted of violating both subparts of the subdivision.” (Brunton,
at p. 1107.)
We agree with Brunton and Cota. In our view, those opinions have accurately
interpreted the Legislature’s view of aggravated assault by harmonizing the history of the
aggravated assault statute with our lawmakers’ expressed reason for reorganizing section
245, subdivision (a). For over a century, the two forms of assault were contained within
the same statutory provision and were understood by our courts to be simply two ways to
commit the same offense. When the Legislature placed them into two separate numbered
paragraphs within section 245, subdivision (a), they made clear they were not “creat[ing]
any new felonies” but rather reorganizing the subdivision to make matters less
“ambiguous” for the prosecution and defense in potential future sentencings.
On balance, given the history of section 245, the legislative history of the 2011
amendment, and the fact that force-likely and deadly weapon assault carry the same
punishment, we conclude they are different statements of the same offense when they are
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based on the same criminal act. Because that is the case here, we conclude Waxlax’s dual
assault convictions violate section 954, and we therefore vacate the force-likely assault
conviction in count 2 and strike the $40 court operations fee (Pen. Code, § 1465.8) and
the $30 court facilities fee (Govt. Code, § 70373) associated with the conviction.5 Our
conclusion does not impact Waxlax’s total sentence because, as noted, the trial judge
stayed the term on count 2 under section 654.
B. Claims of Instructional Error
Waxlax asserts three claims of instructional error. He argues the jury should have
received (i) CALCRIM No. 3470, the self-defense instruction applicable to nonhomicide
offenses, (ii) an instruction on the doctrine of transferred self-defense, and (iii) the
optional language in CALCRIM No. 505 (the self-defense instruction for homicide
offenses) indicating that his fear of imminent danger was based on his belief he was
being robbed.
A trial judge has a sua sponte duty to instruct the jury on “all general principles of
law relevant to the issues raised by the evidence.” (People v. Souza (2012) 54 Cal.4th 90,
115.) The general principles of law governing the case are ‘“those principles closely and
openly connected with the facts before the court, and which are necessary for the jury’s
understanding of the case.”’ (People v. Breverman (1998) 19 Cal.4th 142, 154.) A court
5 Given our conclusion, we need not address Waxlax’s alternative argument as to why his dual assault convictions violate section 954—that force-likely assault is a necessarily included offense of deadly weapon assault. Our Supreme Court has also granted review of this issue in Aguayo. (Aguayo, supra, 31 Cal.App.5th 758, review granted May 1, 2019, S254554.) 14
has a sua sponte duty to instruct on a defense “‘if it appears that the defendant is relying
on such a defense, or if there is substantial evidence supportive of such a defense and the
defense is not inconsistent with the defendant’s theory of the case.’” (Id. at p. 157, first
italics added.) In this context, “substantial evidence” means evidence which would permit
a reasonable jury to find the defense applies. (People v. Hanna (2013) 218 Cal.App.4th
455, 462.)
The sua sponte obligation to give general instructions does not, however, extend to
“pinpoint” instructions or optional paragraphs of instructions. (People v. Lawley (2002)
27 Cal.4th 102, 160-161.) “A party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete unless the
party has requested appropriate clarifying or amplifying language.” (People v. Lang
(1989) 49 Cal.3d 991, 1024.)
We review claims of instructional error de novo. (People v. Cole (2004) 33 Cal.4th
1158.) “The proper test for judging the adequacy of instructions is to decide whether the
trial court ‘fully and fairly instructed on the applicable law.’” (People v. Martin (2000) 78
Cal.App.4th 1107, 1111-1112.) ‘“In determining whether error has been committed in
giving or not giving jury instructions, we must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.”’ (Ibid.)
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We start with Waxlax’s claim the judge should have instructed the jury with
CALCRIM No. 3470, the general self-defense instruction for nonhomicide offenses.
Waxlax acknowledges the jury was instructed on the doctrine of self-defense in the
context of the attempted murder with CALCRIM No. 505, and he concedes that
instruction provides a correct statement of the law. Nevertheless, he argues the lack of a
similar instruction for the assault charges constitutes reversible error.
We disagree. In light of Waxlax’s testimony and the fact the assault charges were
based on the same act as the attempted murder charge, we conclude the omission of
CALCRIM No. 3470 was harmless under either the federal or state standards. (See
People v. Gonzalez (2018) 5 Cal.5th 186, 199 [California Supreme Court has “yet to
determine whether a trial court’s failure to instruct on a requested affirmative defense
instruction supported by substantial evidence is federal constitutional error or state law
error”].) The difference between CALCRIM No. 3470 and CALCRIM No. 505—that is,
the difference between self-defense in the homicide context and self-defense that will
justify an assault—lies in the type of the threat the defendant believed they faced. To
justify a homicide or attempted homicide, the defendant must believe that “danger” or
“great bodily harm” is imminent, whereas an assault committed in self-defense may be
justified if the defendant feared that any “bodily injury”, or even an “unlawful touching,”
was imminent. For both homicide and assault, the amount of force the defendant uses
must be no more than reasonably necessary to fend off the perceived threat.
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Here, the evidence did not implicate the difference between the two types of self-
defense. This is because Waxlax provided the same justification for the attempted murder
charge as he did for the assaults, and the justification wasn’t that he feared a robbery
accomplished by means of an unlawful touching or a simple injury. Instead, he told the
jury he grabbed his knife “[s]o I can fight a bunch of people” because “I don’t know who
has a gun or weapons.” Thus, according to his own testimony, he feared his perceived
assailants had weapons and would use them to take money from him. In other words, he
feared great bodily harm.
But even if Waxlax’s testimony could support a finding that he believed Kimbler
and Contreras were unwilling to seriously injure him for the money but intended only to
touch him in some unlawful way, CALCRIM No. 3470 is still inapplicable. This is
because, if the jury believed he feared a lesser threat from the two men, his decision to
defend himself with a knife becomes unreasonable or more than necessary to fend off the
perceived threat. In short, Waxlax’s testimony supported only one theory of self-defense,
that he feared his attackers were armed and would seriously harm him to get what they
were after. As a result, CALCRIM No. 505 sufficiently instructed the jury on the
principles relevant to the evidence presented at trial.
Next we address Waxlax’s claim that the jury should have received an instruction
on transferred self-defense. That doctrine applies where the defendant acts justifiably in
self-defense and in so doing “inadvertently [causes] the injury of an innocent bystander.”
defense applies to his case because his testimony shows the only person he saw as a
threat was Contreras. He argues the lack of an instruction on the doctrine presented the
jury with a false all-or-nothing choice regarding his claim of self-defense: either he acted
to defend himself against Kimbler or he intended to harm him. He argues his testimony
permitted the jury to find a third scenario was true—that he accidentally stabbed Kimbler
in an effort to protect himself from Contreras.
We conclude the record does not support such a scenario. Contrary to his
characterization of his testimony on appeal, Waxlax told the jury he was scared of both
men and grabbed his knife to defend against both of them. He made this clear several
times during his testimony, including when he said he grabbed his knife “[s]o I can fight
a bunch of people” because “I don’t know who has a gun or weapons,” as well as when
he said he brandished the knife at “them” and told them to back up. Indeed, he said it was
Kimbler’s act of running towards him yelling about money that made him realize he was
being robbed. The record contains no evidence suggesting he feared Contreras only.
Finally, we turn to Waxlax’s claim that the lack of a robbery pinpoint instruction
constitutes reversible error. Recognizing judges have no sua sponte obligation to provide
pinpoint instructions, Waxlax argues his counsel’s failure to request the instruction
constitutes another instance of ineffective assistance. In order to establish a claim of
ineffective assistance of counsel, a defendant must demonstrate that his attorney’s
performance was deficient and that the deficiency was prejudicial or had a tendency to
affect the outcome of trial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 690.)
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Sufficiency of his counsel’s performance aside, we conclude the lack of the pinpoint
instruction was harmless. (People v. Barber (2020) 55 Cal.App.5th 787, 799 [“Any error
in refusing to give a requested pinpoint instruction is reviewed under the standard
enunciated in People v. Watson (1956) 46 Cal.2d 818”].)In relevant part, CACLRIM No.
505 says an attempted murder may be justified if the jury finds Waxlax “reasonably
believed that [he] was in imminent danger of being killed or suffering great bodily
injury.” (CALCRIM No. 505.) The instruction contains optional bracketed language that
can be added to the end of this phrase if warranted by the evidence. That optional
language says, “or was in imminent danger of being (raped/maimed/robbed/____ [insert
other forcible or atrocious crime]).”
The point of the optional language is to identify Waxlax’s theory of self-defense
for the jury, but his trial testimony and the closing arguments from both sides did an
adequate job of that. Waxlax spent the majority of his testimony explaining that he
thought he was being robbed, and both sides highlighted that testimony at length in their
closing remarks to the jury. Additionally, it is not as though the generic threat language in
CALCRIM No. 505 was at odds with Waxlax’s testimony such that it could lead the
jurors to reject his claim of self-defense even if they credited his testimony that he
thought he was being robbed. Waxlax testified that both men asked him about money and
acted aggressively and that he feared they might have weapons. While this testimony
supports a finding that he thought he was being robbed, it equally supports a finding that
he thought he was in imminent danger of serious bodily harm.
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“Forcible and atrocious crimes are generally those crimes whose character and
manner reasonably create a fear of death or great bodily injury.” (CALCRIM No. 505,
citing People v. Ceballos (1974) 12 Cal.3d 470, 479, italics added.) As such, the pinpoint
instruction is designed to underscore the reasonableness of a defendant’s fear of death or
serious harm by focusing the jury on their belief they were about to become the victim of
a robbery. But here, Waxlax’s testimony and the closing arguments from both sides
focused the jury on his belief he was being robbed. Waxlax spent the majority of his
direct examination explaining why he thought he was being robbed, and both sides
highlighted that testimony at length in their closing remarks to the jury. Under these
circumstances, we conclude that “[a]dding an additional instruction that [Waxlax] could
have acted in self-defense if he had a fear of great bodily injury or death due to robbery
would not have changed the jury’s finding on this point.” (See People v. Morales (2021)
69 Cal.App.5th 978, 994, italics added [because the trial testimony and closing argument
articulated defendant’s self-defense-from-robbery theory, any error in omitting the
robbery pinpoint instruction was harmless].)
III
DISPOSITION
We vacate the conviction for assault with force likely to cause great bodily injury
(§ 245, subd. (a)(4)) in count 2 and strike the corresponding court operations (Pen. Code,
§ 1465.8) and facilities fees (Govt. Code, § 70373) but otherwise affirm the judgment.
We direct the trial court to prepare an amended abstract of judgment reflecting the
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judgment as modified in this opinion and forward a certified copy to the Department of
Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION
SLOUGH J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
21
AI Brief
AI-generated · verify before citing
Holding. The court held that dual convictions for assault with a deadly weapon and assault with force likely to produce great bodily injury violate Penal Code section 954 when based on the same criminal act, as they constitute different statements of the same offense.
Issues
Whether dual convictions for assault with a deadly weapon and assault with force likely to produce great bodily injury violate Penal Code section 954 when based on the same act.
Whether the trial court committed reversible error by omitting specific self-defense jury instructions.
Disposition. Affirmed in part; vacated in part.
Quotations verified verbatim against the opinion
“On balance, given the history of section 245, the legislative history of the 2011 amendment, and the fact that force-likely and deadly weapon assault carry the same base term punishment, we conclude they are different statements of the same offense”
“We find Waxlax’s claims of instructional error meritless but agree his dual assault convictions violate section 954. We therefore vacate the force-likely assault conviction in count 2 and strike the fees associated with that count”