People v. Clapps CA3

Filed 9/18/23 P. v. Clapps CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C096554

Plaintiff and Respondent, (Super. Ct. No. 20FE009190)

v.

EUGENE CLAPPS,

Defendant and Appellant.

Following a bench trial as requested by defendant Eugene Clapps, the trial court found defendant guilty of attempted murder, aggravated mayhem, mayhem, assault with a deadly weapon in prison, and assault likely to cause great bodily injury. The trial court found true enhancement allegations that defendant personally inflicted great bodily injury and used a deadly and dangerous weapon, and it also found that he had two prior strike convictions. The trial court sentenced defendant to 27 years to life for attempted murder, plus five years for the great bodily injury enhancement, and imposed but stayed sentences on the remaining convictions.

1

Defendant now contends (1) the mayhem conviction must be dismissed because it is a lesser included offense of the aggravated mayhem conviction, and (2) substantial evidence does not support the finding that his prison-issued boots were deadly weapons. Finding merit only in the first contention, we will reverse the mayhem conviction and otherwise affirm the judgment. BACKGROUND Correctional Officer Michael Carey supervised the move of inmate R.R. into defendant’s cell the morning of February 16, 2020. R.R. was five feet five inches tall and weighed 125 to 130 pounds; defendant was about six feet tall and weighed about 230 pounds. Prior to the move, defendant told Officer Carey he was fine with the move. As R.R. went into the cell, defendant shook his hand, gave him a little pat on the back, and went into the cell with him. The cell door closed behind them. About 30 minutes later, another correctional officer notified Officer Carey about erratic movements and banging sounds from the cell. When Officer Carey looked through the cell window, he saw defendant standing inside the cell uninjured. Officer Carey could not see R.R. When Officer Carey stepped closer to the window of the cell, he saw R.R. on the ground. R.R. was not moving, and there was some blood around his body. Defendant said he never touched R.R, that R.R. slipped and hurt his head on the toilet. Video surveillance showed defendant’s head through the cell window moving aggressively up and down in jerking movements a couple minutes after the cell door had closed. Officer Carey saw blood around R.R.’s face and head. R.R.’s head had an indentation the size of a softball and his left ear was missing or torn away. R.R. was unresponsive and he had trouble breathing. At the hospital, R.R. was diagnosed with severe traumatic brain injury. R.R. required a craniotomy, temporary brain drain, tracheostomy, and feeding tube. He had facial fractures and fractures on both sides of his skull, which could only occur with a significant amount of force. Upon discharge, R.R. was in a vegetative state.