THE PEOPLE v. LADERICK RICHARDSON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Laderick Richardson was convicted of attempted voluntary manslaughter, corporal injury to a child's parent, assault with a deadly weapon, mayhem, dissuading a witness from reporting a crime and grand theft, with true findings on deadly weapon and great bodily injury allegations.   The trial court sentenced him to 19 years, 4 months in state prison.   He appeals, claiming a number of sentencing errors as well as insufficiency of the evidence underlying the jury's true finding on a knife enhancement.   The deadly weapon enhancement on count 2 is stricken;  in all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL SUMMARY

In 2008, Brianna Seiler and Laderick Richardson were engaged and had a two-year-old son.   Seiler and Richardson had been dating for four or five years—since the ages of 15 and 14, respectively.   Seiler lived with her parents and son in Lancaster.   Richardson was attending the Art Institute in Orange County, but often spent weekends at Seiler's home or at his parents' home in Kern County.

In the months before July 2008, Richardson had been controlling and aggressive.   He threatened to kill Seiler if she ever left or cheated on him.   In January or February, while intoxicated, he had held a knife to Seiler's throat and said he would kill her.   She said, “No, you won't,” and he responded, “You're right.”

On July 26, 2008, Seiler and Richardson spent the day at the mall with their son.   After putting him to bed, Richardson poured some drinks at about 11:00 p.m. They were joking around and Seiler playfully pushed Richardson on the shoulder.   He slapped her across the face with the back of his hand.   She cried and picked up the telephone, telling Richardson she was calling the police.   Richardson grabbed the phone and threw it across the room, breaking it open.   As Seiler backed away, Richardson “got in [her] face,” called her “a bitch,” and told her to “quit crying like a baby.”   Then he headbutted her.

Seiler knelt on a chair and told Richardson she would leave unless he stopped treating her this way.   He said, “You're going to leave?”   She said, “Yes.” He charged at Seiler and punched her in the left eye, shattering her eye socket.¹  She dropped to the floor, unconscious.   She did not punch, slap or threaten Richardson in any way.

Later that night, Seiler woke up for a few seconds in a pool of her own blood.   She heard Richardson's mother on the answering machine saying something like, “Baby, we're on our way.”   She lost consciousness again and did not wake up until she was at the hospital.

Seiler's purse containing her wallet and debit card had been sitting on a kitchen barstool.   She had not given Richardson permission to take it or to withdraw money from her account.

Richardson drove to his parents' house (about 25 minutes away), arriving at about 1:05 a.m., with his son.   He looked scared and nervous and was pacing “really fast.”   He did not smell of or appear to be under the influence of alcohol.   He stayed for about 10 minutes, then drove off in his mother's Toyota Camry, leaving his son behind.   His parents tried to get him to calm down and told him not to leave, and his mother grabbed him by the shirttail but could not stop him.

Richardson went to an ATM and, at 1:42 and 1:44 a.m., used Seiler's debit card to withdraw $400 from her account.

After Richardson left, his mother Mary tried to call Seiler's home and left a message she and her husband were on the way.   They drove with Seiler's and Richardson's son to Seiler's home.   Richardson's father waited outside with their grandson.   When Mary saw Seiler and all the blood, she told Richardson's father to call 911.   Seiler's eyes were swollen and she had cuts on her face and her neck.

Paramedics and deputies arrived.   Seiler was unrecognizable due to the severity of her injuries.   Her neck had been slashed open, exposing her trachea.   There was a bloody steak knife on the kitchen island, and blood throughout the house, including a trail to the child's room.   The Richardsons gave deputies their son's description and said he'd driven off in his mother's Camry.

Seiler was flown by helicopter to Holy Cross Hospital.   She had a “blowout” fracture to her left eye socket.   Both eyes were swollen shut, and she had multiple contusions and blunt trauma to her face.   Her teeth were loose and she had blood in her mouth.   Her throat was “completely open” from two very deep slash wounds which went from one side of her neck to the other.   She required a transfusion of at least six units of blood.   She required two surgeries to rebuild her eye socket and close the gaping wounds in her neck, requiring 20–30 subcutaneous stitches in addition to stitches needed to close her skin.

At around 9:30 the next morning, Customs and Border Protection agents working at the Mexican border stopped Richardson in his mother's car as he attempted to reenter the United States, triggering an alert he was wanted by police, and he was arrested.

Richardson was charged with attempted murder (count 1;  Pen.Code, §§ 187, subd. (a), 664 [all undesignated statutory references are to the Penal Code] ), corporal injury to a cohabitant/child's parent (count 2;  § 273.5, subd. (a)), assault with a deadly weapon (count 3;  § 245, subd. (a)(1)), aggravated mayhem (count 4;  § 205), dissuading a witness from reporting a crime (count 5;  § 136.1, subd. (b)(1)), first degree robbery (count 6;  § 211) and grand theft (count 7, § 487, subd. (a)), with special allegations Richardson had personally used a deadly weapon (§ 12022, subd. (b)(1)) and inflicted great bodily injury under circumstances of domestic violence (§ 12022.7, subd. (e)) as to all counts.²

The People presented evidence of the facts summarized above.   Seiler (now Ashe) testified she spent four or five days in intensive care, unable to open her eyes for several days.   Her pupils were misaligned for several months.   She had blood clots in both eyes, and had blurry vision and pain in her left eye.   Her entire neck was numb for almost a year.   As sensation returned, her neck was painful, and she was still in pain.

Richardson testified in his own defense.   He did not deny he punched Seiler, tried to kill her by slitting her throat, fled, used Seiler's and his mother's ATM cards to get cash and drove to Mexico.   He described his relationship with Seiler as “pretty bad” and said she had told him seven months earlier she was having an affair, but he wanted to make the relationship work.   He said Seiler called him names and punched him several times in the preceding months, taunting him to hit her back.   Then she hit and kicked him, calling him a “pussy.”   He testified he had never struck or threatened her and never reported her abuse because “[g]uys don't report their girlfriend's beating them up.”   He said they would sometimes play fight, but she asked for it, and he never held a knife to her throat.

On July 26, he testified, he ate some fast food and left a steak knife on the counter.   He wasn't angry.   He chugged three gulps of tequila and chased it with some rum.   After watching some television, he and Seiler argued about not being able to hang out with her friends.   She slapped him, he slapped back, in shock.   He said she screamed at him that he was a “piece of shit” and not a man and would never see their son.   He said he tried to explain he had never slapped her before and said he was feeling “calm” but “pissed off” at the time.   As she called him names, he said, he charged at her and punched her in the eye.   With his “adrenaline ․ pumping” he felt enraged and out of control.   He took the knife and cut Seiler's throat as she lay on the floor, “down for the count.”   He said he had not planned it.   He admitted cutting her throat a second time, from “ear to ear.”   He felt sad, frustrated, angry and “fed up.”

He saw that she was bleeding and unconscious.   He made no effort to get her medical attention.   He realized he had done something bad, something horrible so he got his son and fled after taking Seiler's purse.

He told his parents he had only hit Seiler but believed he had killed her.   He changed, got money from his mother's and Seiler's accounts, and drove to Mexico (buying car insurance before crossing the border).   He checked into a hotel and exchanged the money for pesos.   He slept and later learned from his father Seiler had survived.   He decided to come back and was arrested.

He initially told detectives he had acted in self-defense after Seiler tried to hit him with a bottle, but admitted he had lied.

Richardson also presented the testimony of toxicologist Leo Summerhays who told the jury alcohol could cause some people to become violent and aggressive and lead to a loss of control due to decreased inhibitions even at low levels of intoxication.

Summerhays had no information regarding Richardson in particular.

The jury found Richardson not guilty of attempted murder, aggravated mayhem and robbery.   He was convicted of the lesser included offenses of attempted voluntary manslaughter (count 1), mayhem (count 4) and grand theft (count 6) as well as corporal injury on a child's parent (count 2), assault with a deadly weapon (count 3) and dissuading a witness (count 5).   The jury found true the deadly weapon and great bodily injury allegations as to counts 1 through 4, but not true on counts 5 and 6.

The trial court sentenced Richardson to a term of 19 years, 4 months in state prison, calculated as follows:  14 years on count 4 (8 year upper term plus 6 years for the enhancements);  sentence of 11 years, 6 months on count 1 was stayed (§ 654);  on count 2, a consecutive term of 2 years, 8 months (one-third the three year midterm, plus 20 months for the enhancements);  on count 3, sentence of 2 years was stayed (§ 654);  on count 5, a consecutive 2 years;  and count 6, a consecutive term of 8 months (one-third the 24–month midterm).

Richardson appeals.

DISCUSSION

According to Richardson, his sentence on count 2 (corporal injury to a cohabitant/child's parent) should be stayed pursuant to section 654, because the jury found true the deadly weapon enhancement on this count, and Richardson did not use the knife when he punched Seiler in the eye.   In addition, both acts (punching and slicing her neck) amounted to an indivisible course of conduct.   We disagree.

At trial, the parties discussed both the punch that shattered Seiler's eye socket and the knife slashes to her throat as corporal injury.   The trial court stated, “I do find that that is a separate crime having to do with the shattering of the eye socket.   Therefore, I will impose a consecutive one-third the midterm, which would be one year.   The personal use allegation would be one-third the midterm, which would be one year, four months.   So as to count number two, it will be a consecutive two-year, eight-month sentence.”   Nevertheless, particularly in light of Richardson's own testimony he grabbed Seiler's hair, leaned down, and cut her throat from “ear to ear” twice, the trial court was permitted to treat the punch that initially incapacitated Seiler—long enough for Richardson to observe she was “down for the count” and (as he claimed) snoring—as a separate and distinct incident justifying a consecutive term.  (People v. Towne (2008) 44 Cal.4th 63, 85–88;  People v. Jones (2002) 103 Cal.App.4th 1139, 1143;  People v. Greene (1996) 50 Cal.App.4th 1076, 1085.)

As the People concede, however, the sentence imposed for the true finding on the deadly weapon enhancement must be stricken as it is acknowledged Richardson did not use a knife when he punched Seiler.

Richardson claims the true finding on the great bodily injury enhancement as to count 2 should be stricken or alternatively, the sentence must be stayed because only one such enhancement may be imposed when a single victim suffers multiple injuries.   We disagree.

Richardson cites People v. Reeves (2001) 91 Cal.App.4th 14, in which the court found section 654 applied to the trial court's imposition of two great bodily injury enhancements—one on an assault and another on a burglary conviction based upon the same incident involving a single victim.  (Id. at p. 56, italics added [“respondent directs us to no precedent approving of multiple sentence enhancements for a single assault against a single victim, even though the defendant committed additional crimes against that victim”].)   “ ‘[S]ection 654 ․ prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.’ ”  (Id. at pp. 56–57, italics added, citation omitted.)   Accordingly, the Reeves court concluded the trial court should not have imposed two great bodily injury enhancements “[i]n the absence of any evidence making the assault of [the victim] divisible.”  (Reeves, supra, 91 Cal.App.4th at p. 57, citation omitted.)   Here, however, although great bodily injury was inflicted upon one victim, as we have already discussed, two separate injuries were inflicted as a result of two separate and distinct acts.   On this record, we find no error in the imposition of two great bodily injury enhancements.

Richardson claims the trial court ignored the jury's findings and demonstrated an animus toward him inconsistent with judicial objectivity.   We disagree.

To be sure, the trial court found it inconceivable that the jury had essentially accepted his argument that he had been provoked and reacted as a reasonable person would have, but its decision to impose the upper term on count 4 and the corresponding enhancement is supported by the record and within the court's proper exercise of its discretion.  (People v. Sandoval (2007) 41 Cal.4th 825, 843–847.)

DISPOSITION

The deadly weapon enhancement on count 2 is stricken;  in all other respects, the judgment is affirmed.

We concur:

FOOTNOTES

FN1. Richardson is 6'1,” weighs about 260 pounds and lifts weights at the gym several times a week.   He was much stronger than Seiler..  FN1. Richardson is 6'1,” weighs about 260 pounds and lifts weights at the gym several times a week.   He was much stronger than Seiler.

FN2. Count 7 was later dismissed, and the deadly weapon special allegation was stricken as to count 3 as an element of the same offense..  FN2. Count 7 was later dismissed, and the deadly weapon special allegation was stricken as to count 3 as an element of the same offense.

PERLUSS, P.J. ZELON, J.