People v. Waxlax

72 Cal.App.5th 579

287 Cal.Rptr.3d 425

The PEOPLE, Plaintiff and Respondent,

v.Charles Kenneth WAXLAX, Defendant and Appellant.

E074347

Court of Appeal, Fourth District, Division 2, California.

Filed December 9, 2021

As Modified on Denial of Rehearing December 23, 2021

Richard Power and Howard Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SLOUGH, J.

During an altercation outside a bar after last call, Charles Waxlax stabbed Erik Kimbler in the back with a military-grade knife. Kimbler suffered serious injuries but survived. At trial, the jury rejected Waxlax's claim of self-defense and convicted him of the four crimes the prosecution had charged him with—attempted murder, assault with a deadly weapon, assault with force likely to produce great bodily injury, and attempting to dissuade a witness from reporting a crime. The trial judge sentenced him to 11 years in prison, consisting of nine years for the attempted murder conviction and two years for the dissuading conviction. The judge imposed, but stayed under Penal Code section 654, three-year sentences on the two assault convictions.¹

On appeal, Waxlax argues the omission of the following three self-defense related jury instructions requires reversal of his murder and assault convictions: (i) an instruction on the doctrine of transferred self-defense, (ii) CALCRIM No. 3470, which defines self-defense for all nonhomicide offenses, and (iii) a pinpoint instruction that his specific fear of imminent danger arose from his belief he was being robbed. Waxlax also argues his dual assault convictions at the very least violate section 954 because force-likely assault ( § 245, subd. (a)(4) ) and assault with a deadly weapon ( § 245, subd. (a)(1) ) are different statements of the same offense and his charges were based on the same conduct—his single act of stabbing Kimbler.

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, but we affirm the judgment in all other respects.

IFACTS

A. Prosecution's Case

According to Kimbler, he and Waxlax had been friends for several years, but their friendship ended when he started dating Waxlax's ex-fiancé, Shea, about a week after their breakup. When they were friends, Kimbler loaned Waxlax about $1,500, which he never repaid. At trial, Kimbler told the jury he didn't really care about the money because he never expected Waxlax to pay him back.

On March 27, 2015, Kimbler and Shea were celebrating his birthday with some friends at the Red Barn, a bar in Palm Desert. Waxlax also happened to be at the bar that evening but was playing pool with a different group. Kimbler had several drinks over the course of the night and was quite drunk when the bartender announced last call around 1:45 a.m.

As Kimbler was leaving with Shea and his friend, Contreras, they spotted Waxlax sitting in his car in the corner of the parking lot. Earlier in the evening, Kimbler had pointed Waxlax out to Contreras as the guy who used to date Shea, so Contreras decided he wanted to talk to Waxlax. He approached the driver's side window of Waxlax's car and complimented his stereo system. Leaning onto the driver's side door and speaking through the open window, Contreras asked Waxlax about the money he owed Kimbler. At the same time, Shea slid into Waxlax's backseat. In response, Waxlax opened his door against Contreras and demanded, "what money?" Thinking Waxlax was trying to start a fight, Contreras put up his fists.

When Kimbler saw the situation was turning into an argument, he rushed over and got between Waxlax and Contreras. With his back turned to Waxlax, Kimbler told Contreras it wasn't "worth it" and they should leave. As Kimbler spoke to Contreras, Waxlax came up from behind and stabbed him under his right armpit. He pushed the blade between Kimbler's ribs, all the way to the hilt, then kissed him on the cheek. Kimbler turned around to see Waxlax with a knife in his hands and screamed, "You fucking stabbed me!" before falling to the ground.

Waxlax left, and Shea and Contreras took Kimbler to the hospital, where he spent two weeks in a medically induced coma. The blade punctured his lung and nearly cut his liver in half. Less than an hour after the incident, at 2:27 a.m., he received a text from an unknown number that said, "If anyone goes to the hospital or talks to law, it's done. If my name gets even implied, everyone is done. I know how to handle this s-h-i-t."

At trial, Kimbler said he'd recognized the knife Waxlax used to stab him. Once when they were hanging out, Waxlax had showed him the knife (a Ka-Bar brand, military combat knife) and told him that if he ever wanted to hurt someone to stab them in the side of the chest because that would cause the "most damage."

Though Kimbler and Contreras recounted the broad strokes of the incident similarly, their testimony differed on one topic in particular.² Kimbler said the first time he'd seen Waxlax that night was in the parking lot after last call. But according to Contreras, Kimbler pointed Waxlax out to him while they were at the bar and wondered why he was there. Contreras said Kimbler told him Waxlax owed him money because he had stolen from Shea. Later, around the time of last call, Kimbler mentioned Waxlax again, saying, "I don't like that guy, and I don't like that he is here."

B. Defense Case

Waxlax testified in his own defense and gave yet another version of the events. He denied ever having been friends with Kimbler. He said he and Kimbler used to deal drugs together and that he'd hung out with him only a few times, just to see if he could trust him enough to do business with him. He said he'd been the one to break up with Shea and didn't care that Kimbler was dating her. He didn't know it was Kimbler's birthday that evening and it was just a coincidence he was at the bar.

He was alone in his car when Contreras approached him and got him to roll his window down by asking him something about his stereo system. But Contreras changed topics as soon as the window was down. Leaning in towards Waxlax with both elbows on the window's ledge, Contreras told Waxlax he owed Kimbler money. At this point Waxlax knew something was awry, and he felt unsettled. It was late, the parking lot was dark, and he didn't know this person who was demanding money from him. Just then, Shea jumped into his back seat, tried to hit him, and reached into the center console. Waxlax believed she stole the money he kept in that compartment because when the police inventoried his car after the incident, the money was gone.

After Shea got into his car, Waxlax got out, pushing Contreras aside with the driver's side door. He started yelling for someone to help him remove Shea, while Contreras stood just a few steps away, with his fists up, ready for a fight.

Then Waxlax noticed someone else running toward him, yelling, "Where is my mother fucking money?" He had no idea who the person was, but it was their approach—aggressive and quick—that made him realize he was about to be robbed. "When I heard the person running up saying, ‘Where is your mother fucking money at,’ that's when everything clicked ... It clicked I'm being robbed right now." "It's 2:00 in the morning. People are running at me, ‘Where is your fucking money at?’ I was focused on who these two people are because I don't know this guy. The only person I know is that [Shea] is in my car."

That's when Waxlax made the split-second decision to protect himself. He maneuvered between the two men, reached into the driver's side door and grabbed his knife from the floorboard. He turned around and brandished the knife, warning the two men to "Get the fuck back." This was apparently the moment the stabbing occurred, but Waxlax's testimony on this point is brief and vague. He said he tried to get back into his car but Contreras lunged at him and at that moment he "felt contact with the knife." On cross-examination, he said the knife was so well made it must have slipped through Kimbler's ribs without him even knowing it.

After realizing his knife had made contact with something, he got into his car and drove away. When the police interviewed him about a half-hour later, he denied knowing about the stabbing or having been in any sort of altercation at the bar. He told the officer that the only knife he was in possession of that evening was a pocket knife, and he didn't mention his belief that a group of people had tried to rob him. At trial, he acknowledged having seen Kimbler at the bar earlier but maintained he had no idea the person who ran up to him, and whom he stabbed, was the same person.

IIANALYSIS

A. Dual Convictions under Section 954

We begin with Waxlax's assertion that his dual aggravated assault convictions—for assault with a deadly weapon ( § 245, subd. (a)(1) ; count 1) and assault with force likely to cause great bodily injury ( § 245, subd. (a)(4) ; count 2)—violate section 954 because he was convicted of two statements of the same offense and both were based on the same conduct. We agree.

Section 954, which governs joinder of counts, says in relevant part: "An accusatory pleading may charge [1] two or more different offenses connected together in their commission, or [2] different statements of the same offense or [3] two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in...