People v. Fish

321 Cal.Rptr.3d 738

The PEOPLE, Plaintiff and Respondent,

v.Joseph Lee FISH, Defendant and Appellant.

A168087, A168088

Court of Appeal, First District, Division 4.

Filed June 5, 2024

Certified for Partial Publication.^*

Trial Court: Superior Court of Lake County, Trial Judge: Honorable J, David Markham (Lake County Super Ct. Nos. CR961859, CR965203)

Counsel for Defendant and Appellant: Aaron J. Schechter, Los Angeles, CA, under appointment by the Court of Appeal.

Counsel for Plaintiff and Respondent: Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherin A. Rivlin, Supervising Deputy Attorney Gen- eral, Gregg E. Zywicke, Deputy Attorney General

GOLDMAN, J.

Joseph Fish pled guilty to one felony count of making a criminal threat (Pen. Code,¹ § 422) and was released on his own recognizance pending sentencing. Before he could be sentenced, however, Fish was charged in a separate case and convicted by a jury of misdemeanor domestic battery (§ 243, subd. (e)(1)), felony assault with a deadly weapon (§ 245, subd. (a)(1)), and felony dissuading a witness (§ 136.1, subd. (c)(1)). In a consolidated hearing, Fish was sentenced to a total term of 10 years, 8 months in prison. The court also imposed the minimum mandatory statutory fines and assessments. Fish’s appeals in both cases have been consolidated for all purposes.

In Appeal No. A168088, Fish contends that his convictions for domestic battery and assault with a deadly weapon should be reversed because the trial court erred in instructing the jury. He also contends that his sentence on those counts violated section 654’s prohibition against multiple punishment and that the fines and assessments imposed by the trial court should be vacated because the trial court abused its discretion in finding he is able to pay them. In Appeal No. A168087, Fish reasserts his argument regarding his ability to pay the fines and assessments imposed in connection with his conviction for making a criminal threat. Finding no prejudicial error, we affirm, but in the published portion of the opinion, we explain that, when a unanimity instruction is warranted for the charged offense, it should also be expressly extended to any lesser included offense for which guilt may similarly rest on more than one act.

Background

In October 2021, Fish was charged with (1) making criminal threats (§ 422, subd. (a)); (2) brandishing a weapon (§ 417, subd. (a)(1)); and (3) possession of drug paraphernalia (Health & Saf. Code, § 11364). In December 2021, as part of a negotiated disposition, Fish pled guilty to one count of making a criminal threat in exchange for a grant of probation. Fish was advised that his conviction would qualify as a "strike" for purposes of sentencing on any future felony conviction. The parties stipulated as a factual basis for the plea that on September 25, 2021, Fish told the victim that he was going to bash her head in with a rock and kill her.

In March 2022, Fish was arrested and charged with several offenses committed against a different victim. As subsequently amended, Fish was charged by information in count 1 with corporal injury to a cohabitant (§ 273.5, subd. (a)); in count 2, with assault with a deadly weapon (§ 245, subd. (a)(1)); in count 3, with assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)); and in count 4, with dissuading a witness (§ 136.1, subd. (c)(1)). The information further alleged that Fish’s December 2021 conviction for making a criminal threat constituted a serious felony for purposes of sentencing under the "Three Strikes" law (§ 1170.12) and alleged various aggravating sentencing factors.

At trial, the victim testified that she and Fish had been in a relationship for 16 or 17 years and had one child together. On March 24, 2022, she and Fish had a lengthy argument. After several hours of arguing, she sat down. Fish was standing over her, when he suddenly hit her in the face with his closed fist. She reported that the punch caused some swelling but testi- fied that it "wasn’t like a man punch or anything." After the punch, they walked away from each other in separate directions. Two hours later, she saw Fish approaching carrying metal bar or rod. She was afraid and started to run. When she glanced back in his direction, the metal rod ricocheted off the ground, hitting her in the face and cutting her cheek. After being arrested, Fish called the victim from jail and told her not to cooperate with the prosecution and stated that she would be murdered if she appeared in court.

The jury found Fish guilty of assault with a deadly weapon (the metal rod) and dissuading a witness. The jury found him not guilty of corporal injury to a cohabitant, but guilty of the lesser included offense of domestic battery (§ 243, subd. (e)(1)). The jury found Fish not guilty of assault with force likely to produce great bodily injury. The jury also made true findings as to the strike prior and the aggravating sentencing factors.

Following the jury trial, the court considered and rejected Fish’s motion to withdraw his guilty plea in the strike case. Thereafter, Fish was sentenced together on both cases. The trial court imposed a four-year term for his conviction of assault with a deadly weapon (the low term of two years, doubled for the strike prior); six years for dissuading a witness (the full consecutive middle term of three years, doubled for the strike prior); and eight months for the criminal threats conviction to which he pled guilty (one-third of the middle term of two years). The trial court also imposed a concurrent term of 364 days for his domestic battery conviction.

With respect to the three counts on which Fish was found guilty by the jury, the trial court indicated that it intended to impose a $300 restitution fine (§ 1202.4); a $300 stayed parole revocation fine (§ 1202.45); $120 in court operations assessments (§ 1465.8); and $90 in criminal conviction assessments (Gov. Code, § 70373). Fish objected on the ground that he was unable to pay these fines and assessments. His counsel explained that he was transient at the time of the offenses and had not been employed since 2019. The trial court overruled his objection, stating: "According to the probation report, his physical health is good, his mental health is good, and he can do physical labor. So I do find that he has the ability to pay the fines and fees. I am imposing the minimum fines and fees in this case." As for the case in which Fish pled guilty, the trial court imposed "concurrent" mandatory, minimum statutory fines and assessments.

Discussion

I. Instructional Error (A168088)

Fish contends that the Court erred by failing to give a unanimity instruction as to the domestic battery charge (the lesser offense to corporal injury to cohabitant charged in count 1) and by failing sua sponte to instruct the jury that it could consider the "limited" nature of the victim’s injury in determining whether the metal rod he threw at the victim was a deadly weapon under count 2.

[1–5] " ‘ "It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence" ’ and ‘ "necessary for the jury’s understanding of the case." ’ " (People v. Brooks (2017) 3 Cal.5th 1, 73, 219 Cal.Rptr.3d 331, 396 P.3d 480.) Whether a jury has been properly instructed is a question of law reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210, 17 Cal.Rptr.3d 532, 95 P.3d 811.) When an appellate court reviews a potentially incomplete or misleading instruction, the relevant inquiry is " ‘whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.’ [Citations.] ‘ " ‘ "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ’ " ’ [Citation.] The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487.)

A. Unanimity Instruction

The trial court instructed the jury that Fish was charged in count 1 with inflicting a physical injury on the mother of his child that resulted in a traumatic condition. A traumatic condition was defined as "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." The jury was also instructed that the crime of domestic battery is a lesser offense of the charged offense, which requires only that defendant touch the victim in a "harmful or offensive manner." The jury was given the following unanimity instruction under CALCRIM No. 3500: "The defendant is charged with inflicting an injury on the mother of his child that resulted in a traumatic condition in Count 1. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed."

In closing argument, the prosecutor identified the two theories of liability under count 1 and emphasized, "It’s important that while you’re deliberating and if you do come to a unanimous guilty verdict as to Count 1 that everyone also agrees on what act constituted that corporal injury, the punching, her being hit by the rod, perhaps both. But everyone has to agree on what act and everyone has to have a unanimous guilty for a verdict on that act. That’s to protect against maybe ten jurors believe the punch caused the corporal injury but aren’t so sure about the metal rod and another ten maybe believe the rod caused the corporal injury but not the punch. So it’s...