THE PEOPLE v. LATRECE BLANCHE THOMAS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Latrece Thomas was convicted, following a jury trial, of one count of assault with a deadly weapon and one count of assault by means of force likely to produce great bodily injury, both in violation of Penal Code 1 section 245,

subdivision (a)(1).  The jury found true the allegation that appellant personally inflicted great bodily injury on someone who was 70 years of age or older within the meaning of section 12022.7, subdivision (c).  The victim in both counts was 83 year-old Roosevelt Albright.   The trial court sentenced appellant to the high term of four years in state prison for the assault with deadly weapon conviction, plus a five-year enhancement term pursuant to section 12022.7.   The trial court stayed sentence on the assault likely to produce great bodily injury conviction pursuant to section 654.   The court imposed various fines, fees and assessments.

Appellant appeals from the judgment of conviction, contending that the trial court erred in excluding evidence of the victim's prior conviction and in staying rather than striking one of the assault convictions.   We agree that appellant can only be convicted of one count of assault, and we strike appellant's conviction for assault by means of force likely to produce great bodily injury.   We affirm the judgment of conviction in all other respects.

Facts

On June 19, 2009, appellant was renting a room in the home of 83–year–old Roosevelt Albright.   That morning, as Albright came out of his bedroom, he saw that appellant's room was very messy.   He said:  “Boy. This room look like a wind storm been through it.”   Appellant told Albright to mind his own business.

Albright walked into the living room.   Appellant followed, arguing.   Albright picked up a four-inch-tall ceramic dog that looked dirty to him.   Appellant asked:  “Are you going to hit me with the dog?”   Albright replied:  “What I want to hit you for?”   Albright walked toward the kitchen, went back and put the dog on the coffee table and again started walking toward the kitchen.   Appellant cursed at Albright and told him to mind his own business.   She called him an “old gray son of a bitch.”

As Albright was attempting to leave through his kitchen, he felt something hit his head.   He asked appellant why she had hit him.   Appellant left without replying.   Albright picked up a knife that was lying on the kitchen sink.   Blood was running down his head and dripping on the floor.   He noticed a broken vase on the floor.   Albright asked his other tenant to call 911.

Albright received ten stitches in his head and was in the hospital for nearly two months.

Appellant testified in her own defense at trial.   She stated that she had a fight with Albright on June 19 because Albright was “harassing [her] for sex.”   This had happened many times before, usually when he was drinking.   About a month earlier, Albright's daughter had told her that Albright was a “convicted rapist.”   Once, Albright pointed a shotgun at appellant.   Appellant had a paralyzed left arm and was concerned for her safety living with Albright.   She was looking for a new place to live.

Appellant stated that during his argument, Albright held a ceramic dog up “in a striking position” and told her he would “bust” her over her head.   Appellant ran away.   Albright went into the kitchen and returned with a knife.   He said, “You had better give me some of that pussy.”   Appellant ran to her bedroom.

Appellant left her room about ten minutes later and saw Albright in the kitchen.   He came toward her with a knife in his hand.   Appellant picked up a vase and threw it at him.   Albright ducked.   Appellant ran out the door.   Appellant had tried to call 911 during the confrontation, but Albright hung up the phone.

Los Angeles County Deputy Sheriffs Holland and Waldo testified in rebuttal.   Holland stated that she went to Albright's residence on June 19 after the 911 call and interviewed appellant.   Appellant told the deputy that she had called 911 in fear for her safety.   She admitted that she had thrown an object at Albright.   She did not say that Albright had tried to rape her.   Holland smelled alcohol on appellant's breath.   Deputy Waldo interviewed appellant in jail.   She told the deputy that she threw the vase at Albright because he advanced toward her.   She did not say that Albright had attempted to rape her or had indicated a desire for “pussy.”   She did not mention that Albright had previously threatened her with a shotgun.

Discussion

1. Double assault convictions

Appellant contends that she could not properly be convicted of two counts of assault in violation of section 245, subdivision (a)(1), for her one act of throwing a vase at Albright and hitting him in the head.   Respondent agrees.   We agree as well.

Section 245, subdivision (a)(1) provides that “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment.”   The section speaks in the alternative, encompassing two forms of prohibited conduct.   However, the section “defines only one offense.”  (People v. McGee (1993) 15 Cal.App.4th 107, 110.)   “ ‘The offense of assault by means of force likely to produce great bodily injury is not an offense separate from ․ the offense of assault with a deadly weapon.’ ”  (Ibid., citing In re Mosley (1970) 1 Cal.3d 913, 919, fn. 5.)

Appellant's attack on Albright involved a single act, the throwing of the vase at Albright.   The attack constituted both an assault with a deadly weapon and an assault by means of force likely to produce great bodily injury, but those are not separate offenses.   There is no basis for two separate assault convictions.

The court stayed punishment on count 2 (assault by means of force likely to produce great bodily injury) pursuant to section 654.   The proper remedy, under the circumstances, was to strike one of the assault convictions.  (See People v. Bevan (1989) 208 Cal.App.3d 393, 399.)   Since the trial court stayed punishment on count 2, we will order that count stricken.

2. Victim's prior convictions

The court permitted appellant to testify that, about a month before the assault in this case, Albright's daughter told appellant that Albright was a convicted rapist.   Appellant contends that the trial court erred in excluding evidence that Albright was in fact convicted in 1986 of committing lewd or lascivious acts with a child under 14 in violation of section 288, subdivision (a).   We see no error.

Evidence Code section 1103, subdivision (a) provides that in a criminal action, evidence of the character or a trait of character of the victim of the crime is admissible if offered by the defendant to prove conduct of the victim in conformity with the character.   The trial court may exclude evidence proffered pursuant to Evidence Code section 1103 if it is not relevant, or if the probative value is outweighed by other factors specified in Evidence Code section 352.  (People v. Gutierrez (2009) 45 Cal.4th 789, 827–828.)

When a defendant claims self-defense, evidence of a victim's violent character may be relevant to show that the victim was the aggressor.   The victim's character for violence may be proved by either reputation evidence or specific acts.  (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446–447;  People v. Rowland (1968) 262 Cal.App.2d 790, 797–798.)   The victim's violent character may also be relevant to show the defendant's state of mind.  (People v. Lee (2005) 131 Cal.App.4th 1413, 1427;  People v. Butler (2009) 46 Cal.4th 847, 868;  People v. Minifie (1996) 13 Cal.4th 1055, 1065.)

The trial court found that Albright's conviction was too remote in time to be used for impeachment.   The court also found that the conviction was not relevant to appellant's claim of self-defense.   We agree.

A lewd act involving force, violence, duress, menace or fear of bodily injury violates subdivision (b) of section 288.   Appellant was convicted of a violation of subdivision (a).   Force or violence is not an element of subdivision (a).   Thus, the fact of Albright's prior conviction did not show that he had a character for violence.

Sexual penetration is not required for a violation of section 288.  “The ‘lewd and lascivious' act need not be inherently sexual in nature nor need it be shown that the offender touched the child's private parts.”  (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380 [lewd act was rubbing victim's stomach, back and thigh].)   Thus, to the extent that appellant claimed that she was afraid of Albright because he had made sexual advances toward her and she feared he would rape her, her claim would not be strengthened by the fact of Albright's prior conviction, which did not require sexual penetration.²

Further, even assuming for the sake of argument that the trial court erred in excluding Albright's conviction, we would see no prejudice to appellant.   The fact that Albright was convicted 23 years earlier for lewd acts with a child, a crime which does not require force or violence, does not strengthen appellant's claim that she was afraid that Albright would forcibly rape her, a grown woman.   Indeed, Albright's actual conviction could undercut appellant's testimony, since her belief that appellant was a convicted rapist was not supported by Albright's actual offense.   Further, the nature of Albright's sex offense showed him as much less of a threat to appellant than if he had been convicted of rape of an adult woman.   As it was, appellant's testimony that Albright was a convicted rapist went unchallenged at trial.

Disposition

Appellant's count 2 conviction for assault by means of force likely to produce great bodily injury is stricken.   The clerk of the superior court is instructed to prepare an amended abstract of judgment reflecting this change and to deliver a copy to the Department of Corrections and Rehabilitation.   The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Further, appellant was in her forties when the assault occurred.   Albright's prior sexual misconduct involved a child..  FN2. Further, appellant was in her forties when the assault occurred.   Albright's prior sexual misconduct involved a child.

MOSK, J. KRIEGLER, J.