People v. Parrish

• Decision Date: 11 July 1985
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Clyde William PARRISH, Defendant and Appellant. Crim. 6777.

Page 700

217 Cal.Rptr. 700

170 Cal.App.3d 336

The PEOPLE, Plaintiff and Respondent, v. Clyde William PARRISH, Defendant and Appellant.

Crim. 6777.

Court of Appeal, Fifth District, California.

July 11, 1985.

As Modified on Denial of Rehearing

July 31, 1985.

Review Denied November 14, 1985.

Quin Denvir and Frank O. Bell, Jr., State Public Defenders, under appointment by Court of Appeal, Mark L. Christiansen, Chief Asst. State Public Defender and Laurance S. Smith, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert D. Marshall, Supervising Deputy Atty. Gen., Karen Ziskind and Michael T. Garcia, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

GEO. A. BROWN, Presiding Justice.

Clyde William Parrish was convicted by a jury of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)) and was found to have inflicted great bodily injury pursuant to Penal Code section 12022.7. He was sentenced to the upper term of four years on the section 245, subdivision (a), conviction, with a three-year enhancement (Pen.Code, § 12022.7).

Appellant makes two contentions: (1) that assault with force likely to produce great bodily injury with a great bodily injury enhancement cannot be punished more severely than battery with great bodily injury and (2) the trial court prejudicially erred in admitting into evidence two prior felony convictions for impeachment purposes. We affirm.

FACTS

Gerald McKay spent the night of June 20, 1982, at the residence of appellant. Appellant returned to his residence during the early morning hours with some beer, which the two men proceeded to consume. On the morning of June 21, 1982, at approximately 6 a.m., McKay and appellant departed to buy cigarettes. While doing so, they also purchased a small bottle of Thunderbird wine.

McKay remembered walking back through the park near the apartment, but the next thing he remembered was waking up in the hospital. McKay never saw anyone hit him. All the bones in McKay's face were broken.

William Maynard observed two men walking near his residence at about 9 a.m. on June 21. They appeared to be wrestling over a bottle of wine. Appellant struck McKay, and McKay fell down. Appellant proceeded to kick McKay in the ribs and in the head and jumped on his head and chest. Appellant then moved McKay's body about four feet so he was close to a chain link fence. Then, holding onto the fence, appellant proceeded to jump up and down on the victim's face.

Maynard went to call the police, and upon returning he observed that appellant was walking away. Appellant then returned to where McKay lay and began kicking him again in the head and in the chest with extreme force, yelling at him to get up and fight. Appellant was also leaning over McKay, punching him and picking his head up by the hair and slamming it into the ground.

Alton Johnson, aged 10, and his friend observed an altercation between two men in the park the same morning. Johnson did not remember what the men looked like and could not identify appellant.

An officer responded to Maynard's call and arrived at the scene. He observed an unconscious man on the ground who was bleeding profusely. Appellant had walked off. He was cut off by the police and was arrested not far from the scene. Appellant had blood on his hands, shirt, pants, and boots.

In response to the officer's asking for his name, appellant replied, " 'I really smoked the son of a bitch didn't I.' " While being transported to jail, appellant said, " 'I really fucked him up again. Is he going to die? I hope the fucker dies.' " One of the officers who was taking pictures at the scene, testified that appellant voluntarily stated, "Yeah, I did it and he deserved it," that he enjoyed "fucking people up," and again said he wished he had "killed the bastard."

McKay spent 25 days in the hospital. All the bones in his face were broken and had Appellant did not take the witness stand and offered no defense.

to be wired together. His jaws were wired shut for eight months, his vision was blurry, he had headaches and he suffered a loss of memory at the time of trial.

DISCUSSION

PART I

Appellant argues that assault by means of force likely to produce great bodily injury with a great bodily injury enhancement cannot be punished more severely than battery with great bodily injury. ¹

Appellant's contentions are without merit because underlying each assertion is the incorrect premise that Penal Code section 245, subdivision (a), merely punishes an attempt to commit an aggravated battery.

Double Punishment

Assault is an attempted battery. (People v. Heise (1933) 217 Cal. 671, 673, 20 P.2d 317; People v. Fuller (1975) 53 Cal.App.3d 417, 421, 125 Cal.Rptr. 837.) Appellant argues that Penal Code section 245, subdivision (a), punishes an attempted aggravated battery and that Penal Code section 12022.7 punishes a completed aggravated battery. Appellant thus contends that incarceration under both sections, for an attempt and the completed act, constitutes prohibited dual punishment.

However, the state is not barred from imposing punishment for an attempt merely because the crime has been completed. (People v. Johnson (1971) 21 Cal.App.3d 235, 247, 98 Cal.Rptr. 393.) Penal Code section 663 provides in pertinent part: "Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, ..."

Appellant's argument is incorrect because Penal Code section 245, subdivision (a), defines a crime which is separate and distinct from the battery crimes contained in Penal Code section 243. (People v. Fuller, supra, 53 Cal.App.3d 417, 222, 125 Cal.Rptr. 837.)

Punishment under section 245, subdivision (a), is directed at the force used, and it is immaterial whether the force actually results in any injury. The focus is on force likely to produce great bodily injury. (People v. Wingo (1975) 14 Cal.3d 169, 176, 121 Cal.Rptr. 97, 534 P.2d 1001.)

Infliction of great bodily injury is not an element of assault by means likely to produce great bodily injury. The penalty for assault does not contemplate punishment for the infliction of great bodily injury. (People v. Smith (1981) 122 Cal.App.3d 581, 587, 176 Cal.Rptr. 73.) Where assault by means of force likely to produce great bodily injury has occurred, the assault itself represents a completed crime due to the use of the force. (People v. Yeats (1977) 66 Cal.App.3d 874, 878, 136 Cal.Rptr. 243; People v. Smith, supra, 122 Cal.App.3d 581, 587, 176 Cal.Rptr. 73.)

Thus, when one is convicted under Penal Code section 245, subdivision (a), he may also be convicted of battery. (People v. Fuller, supra, 53 Cal.App.3d 417, 422, 125 Cal.Rptr. 837; People v. Smith, supra, 122 Cal.App.3d 581, 587, fn. 2, 176 Cal.Rptr. 73.)

Enhancement under Penal Code section 12022.7 punishes the actual infliction of great bodily injury. The focus is on the result of one's assaultive behavior. Moreover, punishment under section 12022.7 requires the infliction of great bodily injury to be intentional, an element not required for a conviction under assault by means likely to produce great bodily injury or battery with great bodily injury.

The double jeopardy clause of the Fifth Amendment forbids either multiple prosecutions or multiple punishment for the "same offense." (North Carolina v. Pearce (1969) 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.) To determine whether one is being punished twice for the "same offense," one looks to the two statutory provisions to see if each provision requires proof of a fact which the other does not. (Blockburger v. United States (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306.) Penal Code section 12022.7 requires proof of intent, while Penal Code section 245, subdivision (a), does not. Penal Code section 245, subdivision (a), requires proof of force likely to produce great bodily injury, while Penal Code section 12022.7 does not.

Moreover, the rule expressed in Blockburger is one of statutory construction and not of constitutional law. (Albernaz v. United States (1981) 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275.) Where it is clear that the Legislature has intended for punishment of a violation of two statutes to be cumulative, regardless of whether these two statutes proscribe the same conduct, cumulative punishment may be imposed under the statutes in a single trial without offending the due process clause. (Missouri v. Hunter (1983) 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535.)

Penal Code section 12022.7 is not a substantive offense by itself. Rather, it is a legislative attempt to punish more severely those crimes which actually result in great bodily injury. (People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 512-513, 148 Cal.Rptr. 740 (disapproved on other grounds in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 191 Cal.Rptr. 1, 661 P.2d 1081).) Penal Code section 12022.7 applies to all offenses except those where serious bodily injury is already an element of the substantive offense charged. As noted above, a violation of Penal Code section 245, subdivision (a), does not require the showing of any actual injury. Thus, punishment under Penal Code section 245, subdivision (a), with an enhancement under Penal Code section 12022.7 is not double punishment for the same offense in violation of Penal Code section 654. ² As noted above, Penal Code section 12022.7 does not define a separate offense but merely imposes additional punishment. (People v. Superior Court (Grilli), supra, 84 Cal.App.3d 506, 513, 148 Cal.Rptr. 740.) Penal Code section 654 generally does not apply to enhancements because they do not define a crime or offense but relate only to the penalty imposed under certain circumstances. (People v. Stiltner (19...