California Cases November 23, 2021: People v. Buckley

Case Description

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County. No. BF172064A Kenneth Green, Judge.

Jason Szydlik, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, ACTING P. J.

Defendant Kenneth Buckley appeals his convictions for assault with a deadly weapon, child abuse, and several other crimes. He contends his conviction for child abuse was not supported by substantial evidence, and the court prejudicially erred in

1

failing to instruct on unanimity as to two counts. We reject these claims and affirm defendant's convictions.

Defendant further contends, and the Attorney General concedes, that his prior prison term enhancements must be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.). We accept the concession, and remand for resentencing. We also direct the correction of two minute orders. Finally, we deem that defendant's claim under People v. Dueñas (2019) 30 Cal.App.5th 1157, is mooted by our remand for resentencing.

BACKGROUND

On May 11, 2018, the Kern County District Attorney charged defendant with assault with a deadly weapon (count 1; Pen. Code, § 245, subd. (a)(1)), two counts of criminal threats (counts 2 & 5; § 422), willful infliction of corporal injury to a former spouse/mother of child (count 3; § 273.5), dissuading a witness (count 4; § 136.1, subd. (c)(1)), willful harm or injury to a child (count 6; § 273a, subd. (a)) and violating a protective order (count 7; § 273., subd. (a).) The information further alleged a strike prior (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and three prior prison term enhancements (§ 667.5, subd. (b)) as to all counts; a prior serious felony enhancement (§ 667, subd. (a)) as to counts 1, 2, 4, and 5; and a personal use of a dangerous weapon enhancements (§ 12022, subd. (b)(1)) as to counts 2, 4, and 5.

A jury convicted defendant as charged on counts 1, 2 and 4 through 7. The jury acquitted defendant on count 3 (willful infliction of corporal injury on a former spouse/mother of child) and instead convicted him of the lesser included offense of battery upon a former spouse, etc. (§ 243, subd. (e)(1).)

2

After a court trial, the court found true the prior strike allegations and two of the prior prison term allegations as to counts 1, 2, 4, 5, 6, and 7. The court found not true the prior serious felony conviction and one of the prior prison term allegations.

The court sentenced defendant to 14 years in prison, comprised of the following: the upper term of six years on count 6, doubled to 12 years due to the strike prior, plus two years for the prior prison term enhancements. (§ 667.5, subd. (b).) The court also imposed a concurrent sentence of two years on count 1; a stayed (§ 654), concurrent sentence of six years on count 2; a concurrent term of six years on count 4; a stayed ( ibid. ) term of six years on count 5; and a stayed ( ibid. ) term of six years on count 7.

FACTS

In 2016, a restraining order was issued against defendant, protecting his ex-wife, M.B. M.B. has three children: T.B., K.B. and Kh.B. According to M.B., defendant is possibly the biological father of K.B. and Kh.B., but not T.B.

In April 2018, M.B. was in the backyard of her home in Bakersfield, hanging laundry outside to dry. Defendant, her ex-husband, approached and asked for food and water. He also asked," 'Can I stay here in the shed?'" M.B. said," 'No, you have to leave.'" Defendant left but returned sometime later. Again, defendant approached her in the backyard, wanting to talk. M.B. said," 'No, '" and turned her back to defendant. Defendant grabbed her hair and punched her in the head and back with his fist. Defendant slammed M.B. into a wooden fence. Defendant dragged her by the hair back to the house. Defendant told M.B. to get in the house. M.B. went inside and collapsed in the living room due to the blows to her head. During the assault, M.B.'s earrings were ripped out, and her glasses were knocked off her head.

M.B.'s son, K.B., was in the kitchen washing dishes. M.B. told defendant to," 'Get out of here.'" Defendant, who now had M.B.'s kitchen knife, said," 'I'm not playing with you, I will kill you right now.'" Defendant pointed the knife at her and

3

touched it to her chest. Defendant said," 'I will kill you.'" Defendant then called for M.B.'s children.

Eventually, M.B. went to lie down, turned on the TV, and took care of her children while defendant remained in the home. That night, defendant called the children into the living room. The children complied and defendant told them," 'Nobody is going to school tomorrow. Give me all the electronics.' " Defendant also told them:" 'You don't say nothing. You better not tell nothing. Nobody better not come knocking on the door. If I see any officers or anything, I'm just going to automatically stab your mom and your brother, and your baby brother.' "

The children missed more than three days of school. According to M.B., defendant was now making the decisions as to whether and when the children or M.B. could leave the house. At one point, M.B. was able to leave and get groceries. However, she did not call for help because her children were at home with defendant.

Testimony of T.B.

T.B. was in ninth grade when he testified at trial. T.B. testified that defendant walked into the house, holding M.B. and a knife. Defendant pointed the knife at M.B. As he held the knife at M.B., defendant said," 'I'll kill you.'" Defendant also told M.B.," 'I'll cut you.'" The next thing T.B. saw was M.B. lying on the floor, crying. T.B. went into a room and watched television.

At one point, T.B. went back into the living room to grab his brother, Kh.B. T.B.'s other brother, K.B., was washing dishes. Defendant pointed the knife at T.B.,

4

causing him to become afraid. Defendant told T.B.," 'I will cut you.' " K.B. did not hear any statements defendant made to T.B.

T.B. missed the three days of school immediately following the assault.

Testimony of K.B.

K.B. was 12 years old when he testified at trial. K.B. testified that he was washing dishes when he saw that defendant had become "mad" at M.B. in the living room. Defendant retrieved a knife and pointed it at M.B. from about two and a half to three feet away. Defendant said," 'If you snitch or tell the police, I'm going to cut you or stab you.'" Defendant also said," 'I will kill you.' "

Eventually, defendant and M.B. left the house for several minutes. At one point, defendant told K.B. and T.B.," '[I]f you tell anybody at the schools or somebody, I am going to - I'm going to kill your baby brother.'" Defendant was not holding anything at the time. Defendant's threat made K.B. sad and afraid because he did not want his baby brother to die. Initially, K.B. testified that defendant made this statement before defendant and M.B. left the house for several minutes. Later, he testified that defendant made the statement in question on an entirely different day.

K.B. missed the next three days of school because defendant said," '[N]o one is going to school, no one's going nowhere.' "

Defendant's Statement

Officer Mariya Corral interrogated defendant on June 26, 2018. Defendant claimed he had been staying at M.B.'s house "on and off" and had been "using it for showering, toothbrush." Defendant claimed M.B. had invited him over on the day in question. Defendant denied hurting M.B. Defendant also claimed that he told M.B.," 'If

5

anything happen [ sic ] put the blame on me.… [M]ake up I shot you or whatever so you won't get in trouble.'" M.B. allegedly responded," 'Okay. Cool.'" Defendant claimed he was suggesting lying in order to protect his children.

Officers told defendant that his children "both had the exact same story." Defendant responded, "I trained 'em. I trained 'em well." Defendant claimed he told them," '[If w]e ever get caught - my exact words - say that Daddy forced - I don't care because we not about to lose - you know what I'm saying?' "

Prior Events

M.B. also testified about prior incidents. On September 30, 2017, M.B. saw defendant at the side door of her house and panicked. She grabbed her children, put them in the car and drove away.

On June 25, 2016, M.B. had a knock at her door. She opened the door and saw defendant. Defendant asked for her phone and yelled at her. M.B. went "back and forth with him" and told him to "leave or get out or he can't be here." Defendant was angry and began hitting her on her head, side, and back. M.B. was trying to block defendant's blows. Defendant told her to go into the backyard to turn on the grill. M.B. was crying and saying," 'I can't do it.'" Every time she said she could not do it, defendant would "just throw blows inside my head." Defendant retrieved a fork and said," 'You better do it.'" Defendant continued to hit her as they went into the living room. M.B. was on the floor telling him to stop. Eventually, defendant stopped and told her to go to the restroom. M.B. went to the restroom and stayed there for "a long time."

Afterwards, defendant told her to get in the car and to take him somewhere. M.B. was driving and her baby was in the back seat. Defendant hit M.B. as she drove. M.B. tried to get out of the car, but defendant was able to grab her and throw her back in the car. Defendant administered more "blows." After reaching their destination, M.B. grabbed her baby, went into a fast food restaurant and exited a different door than she had

6

entered. She began running away with her baby. She was able to make contact with a police officer, who took pictures of her injuries.

DISCUSSION

I. Substantial Evidence Supported Defendant's Conviction on Count 6

Defendant contends there is insufficient evidence to support his conviction for felony child abuse (count 6).

Defendant was convicted of violating section 273a, subdivision(a), which applies to "[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered …." (§ 273a, subd. (a).)

As its text makes clear, this is an "omnibus" provision that proscribes four "branches" of conduct. ( People v. Sargent (1999) 19 Cal.4th 1206, 1215.) Regardless of which of the four "branches" of conduct is at issue, the defendant must have acted" 'under circumstances or conditions likely to produce great bodily harm or death, '" otherwise there has been no violation of subdivision (a). ( People v. Smith (1984) 35 Cal.3d 798, 806.)

Here, the prosecutor argued defendant willfully inflicted mental suffering on his children by saying threatening things to them and attacking their mother. It seems readily apparent that this conduct falls under the branch of conduct described in section 273, subdivision (a) as the willful infliction of unjustifiable "mental suffering." (§ 273a, subd. (a).) The question presented here is whether this wrongful conduct was committed "under circumstances or conditions likely to produce great bodily harm or death."

7

(§ 273a, subd. (a).) "If so, the crime is punishable as a felony; if not, solely as a misdemeanor. [Citation.]" ( People v. Sargent , supra , 19 Cal.4th at p. 1223.)

" 'Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.' [Citation.]" ( People v. Cortes (1999) 71 Cal.App.4th 62, 80.) "However, there is no requirement that the victim suffer great bodily harm. [Citation.]" ( Ibid .) "It is the likelihood of foreseeable injury, rather than whether such injury in fact occurs, that is relevant. [Citation.]" ( People v. Lee (1991) 234 Cal.App.3d 1214, 1220.)

Courts have held that "circumstances or conditions likely to produce great bodily harm or death" under section 273a, subdivision (a) means: "a serious and well-founded risk, of great bodily harm or death." ( People v. Wilson (2006) 138 Cal.App.4th 1197, 1204.) Thus, in this context," 'likely'" is not synonymous with "probable" or "more likely than not." ( Ibid .)

Here, there was substantial evidence that defendant's conduct occurred under circumstances that presented a serious and well-founded risk of great bodily harm. Defendant attacked T.B. and K.B.'s mother and was holding a knife to her. He also pointed the knife at T.B. and threatened to "cut" him. Defendant also threatened T.B. and K.B.'s infant brother. This volatile and chaotic situation posed a very real threat that the children could rush to defend their mother or brother or even attack defendant. Defendant's threats and his act of pointing the knife at T.B. indicated that he would have responded to such efforts by the children in a manner that would have led to great bodily injury or death. While no bodily harm to the children ultimately occurred, the jury could have reasonably concluded the circumstances were such that great bodily harm was likely .

Defendant argues there was no evidence in the record that the children got closer than eight feet from the knife. First, we observe that eight feet is not a great distance when it is all that separates a violent adult man threatening a child with a knife. Second,

8

while the Attorney General's argument would be even stronger if the children were mere inches away from the knife, the distances involved here do not negate the "serious and well-founded risk" of great bodily harm or death present here.

Defendant also contends that "[d]eath threats alone" do not suffice to show sufficient likelihood of producing great bodily injury or death. However, there were more than death threats here. Defendant held a knife to the children's mother and pointed the knife at one of the children, while threatening them verbally.

These circumstances are sufficiently dangerous for a jury to conclude they posed a serious and well-founded risk of great bodily injury.

II. Defendant has not Established Prejudicial Error Arising from the Failure to Give a Unanimity Instruction

Defendant contends his convictions on count 5 (criminal threats) and count 6 (child abuse) should be reversed because the court failed to give a unanimity instruction to the jury.

A. Unanimity Requirement

"Based on the principle that a defendant in a criminal jury trial has the right to a unanimous verdict, 'cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' [Citation.]" ( People v. Brugman (2021) 62 Cal.App.5th 608, 627.)

"If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecution's statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act." ( People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.)

"Even when the prosecution proves more unlawful acts than were charged, no unanimity instruction is required where the acts proved constitute a continuous course of

9

conduct. [Citation.]' "This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when … the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.] [¶] This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, including … child abuse [citation]." [Citation.]' [Citation." ( People v. Napoles (2002) 104 Cal.App.4th 108, 115.)

Where a unanimity instruction is required, there is a split of authority among the Courts of Appeal regarding whether the state or federal standard of harmlessness applies. ( People v. Hernandez (2013) 217 Cal.App.4th 559, 576-577 [applying federal Constitution standard under Chapman ]; People v. Vargas (2001) 91 Cal.App.4th 506, 562 [concluding state constitutional standard Watson applies because "[t]here [is] no right to a unanimous verdict under the United States Constitution"].) In light of the United States Supreme Court's determination that "[t]here can be no question … that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally" ( Ramos v. Louisiana (2020) ___U.S.___, ___ [140 S.Ct. 1390, 1397]), we assume the federal standard of harmlessness applies. Under that standard, the failure to give a unanimity instruction is harmless" '[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that [the] defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless.' [Citation.]" ( People v. Hernandez , at p. 577.)

B. No Unanimity Instruction or Prosecutorial Election was Required as to Count 6

Defendant points to the prosecutor's closing argument as identifying two discrete acts of child abuse underlying count 6: inflicting mental suffering by attacking their mother and inflicting mental suffering by threatening them.

10

The Attorney General acknowledges that the prosecutor himself identified two actus rei underlying the child abuse count, but contends the two acts were "so closely connected in time and place" so as to constitute "a single course of conduct and a single transaction." However, we note that there was some evidence suggesting the two acts were not closely connected in time: K.B.'s testimony that defendant's threat to the children was made on a different day than the assault on M.B.

Nonetheless, the continuous course of conduct exception can apply even to"' "a series of acts over a period of time ," '" if the statute contemplates the crime being committed in such a fashion. ( People v. Napoles , supra , 104 Cal.App.4th at p. 115, italics added.) Child abuse, under section 273a, is one such statute. ( Id. at pp. 116-117.) Thus, it is not dispositive that there was some evidence that the two alleged acts of child abuse (i.e., assaulting the children's mother and threatening the children directly) were not "closely" connected in time but instead were committed "over a period of time." The acts collectively constituted the crime of child abuse. Therefore, no unanimity instruction was required.

C. Failure to Instruct on Unanimity with Respect to Count 5 was Harmless

With respect to count 5, there was evidence suggesting defendant made at least two separate threats: one to T.B. alone while defendant was holding a knife, and another made to T.B. and K.B. while defendant was not holding anything.

1. First Threat - to T.B. Alone

K.B. was washing dishes when T.B. went into the living room to grab his brother, Kh.B. Defendant pointed the knife at T.B., and said either," 'I will cut you, '" or" 'If you try to leave or anything, I'll cut you.'" K.B. did not hear defendant say anything to T.B.

2. Second Threat - to K.B. and T.B.

K.B. testified that defendant told him and T.B.," '[I]f you tell anybody at the schools or somebody, I am going to - I'm going to kill your baby brother.'" K.B.

11

testified that defendant made this statement on a different day than when the assault on M.B. had occurred. K.B. also testified defendant was not holding anything when he made the threat.

a. Effect of Prosecutor's Closing Argument

The Attorney General asserts that the prosecutor made an election of the specific threat underlying count 5 by saying, "Count 5, criminal threat. This one's to the kids." However, we are skeptical that this was sufficiently clear to constitute a prosecutorial election, given that the prosecutor's next sentence was: "Threatened to cause bodily injury to [T.B.] and/or [K.B.]." The use of "and/or" indicates the prosecutor could have been referring to either the first or second threat. Prosecutorial elections must be "made with as much clarity and directness as would a judge in giving instruction." ( People v. Melhado , supra , 60 Cal.App.4th at p. 1539.)

In any event, while the prosecutor's statement was not sufficiently clear to constitute an election obviating the need for a unanimity instruction, the remainder of the prosecutor's argument - discussed below - clearly showed he was relying on the second threat as the basis for count 5. For that reason, we conclude the failure to instruct on unanimity is harmless as to count 5.

Several points of the prosecutor's argument on count 5 show he was clearly relying on what we have been referring to as the "second threat." First, the prosecutor said the threat was "communicated to [T.B.] and [K.B.] " and that defendant had "threatened them ," - referring to T.B. and K.B. (Italics added.) Second, the prosecutor's

12

description showed he was referring to the threat that mentioned T.B. and K.B.'s "baby brother" (which would have been the second threat). Because the prosecutor's argument made clear to the jury that count 5 was based on one particular threat (i.e., the "second threat"), the lack of a unanimity instruction was harmless.

III. Defendant's Prior Prison Term Enhancements Must be Stricken

Defendant claims, and the Attorney General concedes that the prior prison term allegations (§ 667.5, subd. (b)) must be stricken. "Effective as of January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amends section 667.5, subdivision (b) to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses …." ( People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Because defendant's prior prison terms were not based on convictions for sexually violent offenses, we accept the Attorney General's concession that they must be stricken under Senate Bill No. 136 (2019-2020 Reg. Sess.). Accordingly, we will remand for resentencing. (Cf. People v. Jennings , at p. 682.)

IV. Defendant's Request for Remand to Conduct Ability to Pay Hearing is Mooted by Remand for Resentencing

Defendant argues the matter should be remanded for the trial court to consider defendant's ability to pay fines and fees imposed. Because we are already remanding for resentencing on other grounds, we conclude the issue is moot and do not reach it.

V. Two Minute Orders Must be Corrected

Defendant contends, and the Attorney General agrees, that the trial court's December 14, 2018 order must be corrected to reflect the oral record. The December 14, 2018 written order says that sentence would be stayed on the section 12022,

13

subdivision (b)(1) enhancements to counts 2, 4 and 5. However, the court's verbal order was that those enhancements be stricken.

The Attorney General also notes a discrepancy between the court's October 10, 2018 order and the oral record. The order states that allegation number four in count 2 (a prior prison term based on a conviction for violating Veh. Code, § 2800.5) was found true. However, the reporter's transcript reflects that the allegation was found not true. Defendant agrees the order should be corrected.

We will direct that both orders be amended on remand.

DISPOSITION

Both of defendant's prior prison term enhancements are stricken pursuant to Senate Bill No. 136, and the matter is remanded for resentencing.

On remand, the court is directed to amend its December 14, 2018 order to reflect that the section 12022, subdivision (b)(1) enhancements to counts 2, 4, and 5 were stricken. The court is directed to amend its October 10, 2018 order to reflect that the prior prison term based on defendant's alleged conviction for violating Vehicle Code section 2800.5 was found "not true."

In all other respects, the judgment is affirmed.

WE CONCUR: SMITH, J. SNAUFFER, J.

14

---------

Notes:

All further statutory references are to the Penal Code unless otherwise stated.

The personal use of a dangerous weapon enhancements were subsequently stricken by the court.

M.B. testified she "think[s]" he called the children into the room after pointing the knife at her. However, M.B. later testified that defendant called the children into the living room that night. It is unclear if defendant called the children into the living room on two separate occasions.

M.B. initially testified defendant had said," 'Y'all not going to school today, give me all the phones.'" However, she later clarified the assault happened in the afternoon after the children had come home from school earlier in the day.

T.B. initially testified defendant never pointed the knife at him. The prosecutor showed him a statement given to officers, and T.B. changed his testimony. T.B. testified he does not know why he told officers defendant had not threatened him with the knife.

T.B. told officers that defendant had told him," 'If you try to leave or anything, I'll cut you.' "

In contrast, misdemeanor child abuse under section 273a, subdivision (b),

At another point, K.B. testified that defendant made this statement before he and M.B. left the house for several minutes, which apparently happened on the same day as the assault. However, a unanimity instruction is required when the evidence "suggests" more than one discrete crime. ( People v. Brugman , supra , 62 Cal.App.5th at p. 627.) What is important for purposes of our unanimity analysis is that there was evidence that "suggested" the second threat occurred on a different day than the first.

It seems more likely that, as he was introducing discussion on count 5, the prosecutor was distinguishing count 5 from count 2 (criminal threat against M.B.).

Specifically, the prosecutor said defendant's "[t]hreat actually caused [T.B.] and [K.B.] to be in sustained fear for their safety or safety of their immediate family. When I asked little [K.B.], 'Why were you sad?' He said, 'I want a baby brother.' "

---------