People v. Ackerman

322 Cal.Rptr.3d 240

The PEOPLE, Plaintiff and Respondent,

v.Israel ACKERMAN, Defendant and Appellant.

D082208

Court of Appeal, Fourth District, Division 1.

Filed June 24, 2024

APPEAL from a judgment of the Superior Court of San Diego County, Polly H. Shamoon, Judge. Affirmed. (Super. Ct. No. SCD271741)

Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Getting, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, J.

A jury convicted Israel Ackerman of attempted voluntary manslaughter (Pen. Code,¹ §§ 664, 192, subd. (a); count 1), among other crimes, and found true allegations that Ackerman personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). His sentence included a three-year term for the enhancement.

On appeal, Ackerman contends section 12022.7 prohibits trial courts from imposing a great bodily injury sentencing enhancement where the crime of conviction is attempted voluntary manslaughter. We disagree and, therefore, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2017, Ackerman engaged in a verbal altercation with Anthony K. and then left.² He later returned, climbed up a ladder to the second-floor patio of an apartment in which Anthony was working, and made stabbing motions with a knife at Anthony. After Anthony hit Ackerman with a paint scraper, Ackerman stabbed Anthony four times and then pushed him against a glass window. Anthony eventually walked to a fire station while bleeding profusely, and police found Ackerman unconscious in the apartment. At trial, Ackerman argued that he acted in self-defense.

A jury convicted Ackerman of attempted voluntary manslaughter as a lesser included offense of attempted murder (§§ 664, 192, subd. (a); count 1), making a criminal threat (§ 422; count 2), and assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The jury found true as to count 1 the allegation that Ackerman used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). On counts 1 and 3, the jury found true allegations that Ackerman personally inflicted great bodily injury (§ 12022.7, subd. (a)). Ackerman admitted that he previously suffered two probation denial pri- ors (§ 1203, subd. (e)(4)), one prison prior (§§ 667.5, subd. (b), 668), one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one strike prior (§§ 667, subds. (b)–(i), 668, 1170.12).

In December 2017, the trial court sentenced Ackerman to an aggregate term of 20 years in prison, which included a three-year term for the personal infliction of great bodily injury enhancement attached to count 1.

While the appeal from his original sentence was pending, the Department of Corrections and Rehabilitation (CDCR) recommended Ackerman be resentenced, citing People v. Cook (2015) 60 Cal.4th 922, 183 Cal.Rptr.3d 502, 342 P.3d 404 (Cook).³ We did not address this recommendation in our prior unpublished opinion (People v. Ackerman (Apr. 10, 2019, D073260) 2019 WL 1552691) in which we reversed count 2 and remanded the matter with instructions for the trial court to exercise its discretion to determine whether to strike the five-year prior strike enhancement.⁴

On June 23, 2022, Ackerman filed a petition for writ of habeas corpus claiming the trial court erred by failing to resentence him pursuant to the CDCR letter. The CDCR had explained in its letter that Ackerman was convicted "of [murder, manslaughter, P[en.] C[ode] 451, P[en.] C[ode] 452, or other crime with [the] element of ‘infliction of great bodily injury’] (Pen. Code, § 664/192, subd. (a)), with an enhancement attached for infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a/b/c/d/e))." In its view, Ackerman was entitled to resentencing in light of the Cook case because it prohibited application of a section 12022.7 to a charge of manslaughter and any crime where infliction of great bodily injury was an element of the offense.

During a November 2022 hearing on the petition, the trial court offered its tentative view that Cook only applied to completed acts of manslaughter noting, "there’s no … greater bodily injury than death." When the conviction was for attempt, however, the court implied great bodily injury was not necessarily an element. As it explained, "you can attempt to kill somebody or be involved in a manslaughter, not succeed and have very little damage and injury to the person." For this reason, the court concluded that Cook did not apply. It instead found persuasive the reasoning of People v. Lewis (1993) 21 Cal.App.4th 243, 247, 25 Cal.Rptr.2d 827 (Lewis), which determined "there is no reason to construe section 12022.7 to exempt attempted manslaughter front the enhancement for infliction of great bodily injury."

The trial court then elicited argument from counsel. Defense counsel responded, "I did have the opportunity to read both cases and I looked into the statute as well to see if there was a different interpretation just from the statute. [¶] I do agree with the Court that I do think [great bodily injury] can attach to attempted voluntary but cannot to a complete voluntary." The prosecution also agreed, so the court ruled that the Cook case did not apply and the great bodily injury allegation could attach. It then resentenced Ackerman to 15 years in custody.

DISCUSSION

[1] Ackerman urges us to find that Lewis was wrongly decided and that section 12022.7 does not authorize the addition of a great bodily injury sentencing enhancement when the crime of conviction is attempted voluntary manslaughter. We decline to do so.⁵

[2–4] The interpretation of a statute is a question of law subject to de novo review. (People v. Prunty (2015) 62 Cal.4th 59, 71, 192 Cal.Rptr.3d 309, 355 P.3d 480.) " ‘As in any case involving statutory interpretation, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ " (People v. Cole (2006) 38 Cal.4th 964, 974, 44 Cal. Rptr.3d 261, 135 P.3d 669.) We first examine the statutory language and give it a plain and commonsense meaning. (People v. Lewis (2021) 11 Cal.5th 952, 961, 281 Cal.Rptr.3d 521, 491 P.3d 309.) In so doing, we consider the " ‘ "the entire substance of the statute … in order to determine the scope and purpose of the provision," ’ " and we attempt to harmonize its various parts within the context of the statutory framework as a whole. (People v. Arroyo (2016) 62 Cal.4th 589, 595, 197 Cal.Rptr.3d 122, 364 P.3d 168.) If the language of the statute is unambiguous, then the plain meaning controls. (Cole, at p. 975, 44 Cal.Rptr.3d 261, 135 P.3d 669.)

Section 12022.7 provides that "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." (Id., subd. (a).) "As used in this section, ‘great bodily injury’ means a significant or substantial physical injury." (Id., subd. (f).) Of particular relevance here, the statute further provides that "[t]his section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense." (Id., subd. (g).)

[5, 6] In Lewis, the First Appellate District considered the exact question presented here and concluded that the statute’s language was clear and that attempted manslaughter was not exempted under section 12022.7, subdivision (g). (Lewis, supra, 21 Cal.App.4th at p. 247, 25 Cal.Rptr.2d 827.) It stressed that prior courts had reached the same result in considering the analogous question of whether enhancements could be added to the crime of attempted murder. (Id. at pp. 247–248, 25 Cal.Rptr.2d 827, citing People v. Wells (1983) 149 Cal.App.3d 497, 505, 195 Cal.Rptr. 608 (Wells) and People v. Allen (1985) 165 Cal.App.3d 616, 631, 211 Cal.Rptr. 837 (Allen).) The Wells court observed that whereas the first paragraph of section 12022.7 specifically stated that enhancements applied to individuals who inflicted great bodily injury during the attempted commission of a felony, the paragraph listing exempted crimes did not specifically include attempts. (Wells, at p. 505, 195 Cal.Rptr. 608.) In the Wells court’s view, "[t]his evidences an intent of the Legislature not to exclude attempted murder from the provisions of the section." (Ibid.) The Allen court agreed, noting that murder and attempted murder are separate crimes. (Allen, at p. 631, 211 Cal.Rptr. 837.) In the face of this prior authority, and the fact that the Legislature had not altered the relevant provisions of section 12022.7 following judicial construction of its provisions,⁶ the Lewis court concluded there likewise was no reason to construe section 12022.7 to exempt attempted manslaughter from the enhancement for infliction of great bodily injury. (Lewis, at pp. 248–249, 25 Cal. Rptr.2d 827.)

The question before our high court in Cook was "whether the sentence for the gross vehicular manslaughter of one victim may be enhanced for defendant’s infliction of great bodily injury on other victims." (Cook, supra, 60 Cal.4th at p. 924, 183 Cal.Rptr.3d 502, 342 P.3d 404.) In concluding it could not, our Supreme Court stated, "[s]ubdivision (g) means what it says—great bodily injury enhancements simply do not apply to murder or manslaughter." (Id. at p. 935, 183 Cal.Rptr.3d 502, 342 P.3d 404.)

Although the high court did not have occasion to evaluate whether such enhancements could be applied to attempted versions of these crimes, Ackerman argues the Cook decision "interpreted section 12022.7[,] [subdivision] (g)’s exclusion very broadly" and relied on a decision in this appellate district, which...