I.

INTRODUCTION

Defendant John Warren Hines appeals from his convictions and sentences related

to two separate incidents. In the first, Hines confronted and assaulted a stranger in

downtown San Diego. After his arrest for the first incident, while in custody, Hines

accosted a sheriff's deputy who was attempting to remove Hines's waist chains.

A jury found Hines guilty of robbery, assault likely to produce great bodily injury,

grand theft, and battery with respect to the first incident. Hines waived his right to a jury

with respect to the charges related to the second incident. In a bifurcated bench trial, the

trial court found Hines guilty of battery on a police officer causing injury and resisting an

executive officer with respect to the second incident. The trial court also found true the

allegations that Hines had suffered two prior prison terms as well as a serious felony

conviction.

On appeal, Hines contends (1) that his conviction for battery on a police officer

causing injury should be reversed because there is insufficient evidence that the bruising

on the deputy's arm that resulted from Hines's actions constituted "injury" within the

statute's meaning; (2) that his conviction for robbery should be reversed because there is

insufficient evidence that he used either force or fear to take the victim's sunglasses, or

that he intended to permanently deprive the victim of his sunglasses; (3) that his

conviction for robbery should be reversed on the alternative ground that the trial court

erred in failing to instruct the jury that grand theft is a lesser included offense of robbery,

and allowed the jury to convict him of both crimes even though a properly instructed jury

2 might have found him guilty of only the grand theft and not the robbery; and (4) that the

trial court erred in imposing both a one-year enhancement term under Penal Code1

section 667.5, subdivision (b) and a five-year enhancement term under section 667,

subdivision (a)(1), based on the same prior conviction.

We reject Hines's challenges to his convictions on grounds of insufficiency of the

evidence. There is sufficient evidence to support his convictions for battery on a police

officer causing injury, and for robbery. We agree with Hines's contention that the trial

court erred in failing to instruct the jury that grand theft is a lesser included offense of

robbery. However, the error does not require reversal of his robbery conviction. Rather,

the court should have stricken Hines's conviction for the lesser offense of grand theft.

We therefore reverse his conviction for that offense. Finally, the People concede, and we

agree, that the trial court erred in imposing a one-year sentence enhancement under

section 667.5, subdivision (b) while also imposing a five-year enhancement term under

section 667, subdivision (a)(1), based on the same prior conviction. We therefore strike

the one-year sentence enhancement.

1 Subsequent statutory references are to the Penal Code unless otherwise specified. 3

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. Events of June 26, 2012 (counts 1-4)

At approximately 8:40 a.m. on June 26, 2012, Howard Woods, who was 62 years

old at the time, was walking west on B Street in downtown San Diego. Woods saw

Hines standing next to the open rear door of a parked vehicle. Woods witnessed Hines

reach into the car and remove an American flag. Hines noticed Woods watching him and

asked Woods, "What the fuck you gonna do about it?" Hines then closed the car door.

Woods did not respond and continued to walk down the street.

Hines followed Woods and asked Woods for a cigarette. Woods told Hines that

he could not help him. Hines then held out a cigarette butt and asked Woods for a

"light." Woods responded, "No," and then commented that he thought Hines had taken

something out of someone else's car. Hines was carrying the American flag that Woods

had seen him take out of the parked car. Hines responded to Woods's comment by telling

Woods that he was a member of the West Side Crips. Woods interpreted Hines's

reference to the West Side Crips as a claim that Hines was a member of a criminal street

gang. After making this remark, Hines said to a woman who was standing nearby, " 'You

want to see what I do to him?' " Woods heard Hines make this statement and understood

Hines to be saying that he was planning to physically attack Woods. Woods became very

nervous and wanted to get away from Hines.

4 As Woods crossed the street, Hines walked next to him, partially facing Woods,

and made a gesture with his fist toward Woods, as if he were going to hit Woods. Woods

flinched and stopped in the middle of the street. Hines then grabbed Woods's sunglasses

off of his face and ran away. Woods attempted to chase Hines. Woods followed Hines,

intending to flag down a police officer to report what had happened.

Woods saw Hines crouching behind some bushes along the sidewalk. Woods then

walked toward a nearby business. Hines emerged from the bushes and began to follow

Woods again. Woods demanded that Hines return the sunglasses. Hines then threw the

sunglasses down into the gutter near Woods. Woods picked up the sunglasses and

noticed that Hines had "somewhat bent" the glasses.

After Woods picked up the sunglasses from the ground, Hines walked up to him

and said that he was going to kick Woods "in the balls." When Woods turned away from

Hines, Hines struck Woods in the face with closed fists, and then moved quickly away.

Woods did not attempt to chase Hines after the attack.

A few moments later, Woods was walking on Broadway and spotted Hines

standing alone on the sidewalk across the street. Hines crossed Broadway, walked up to

Woods, and said, " 'Please forget about it.' " Woods responded, "No . . . [n]ot

happening." Hines became angry, made a few comments, and spit in Woods's face.

Hines also jabbed Woods in the neck with a hairbrush.

Woods attempted to grab Hines, but Hines slipped out of Woods's grasp and began

hitting Woods in the face with his fists. Woods fell to his knees. A police officer drove

up at this point and ordered Hines to "get down." Hines stopped hitting Woods. The

5 officer placed Hines under arrest. Hines later told a different police officer that he was

proud that he had assaulted Woods.

The arresting officer saw that Woods had a laceration to the back of his head that

was bleeding, and also had significant bruising on his face. Woods was transported to the

hospital by ambulance.

Hines testified on his own behalf. He acknowledged that at the time of this

incident, he was homeless, was feeling depressed, and had not taken his medication for

his bipolar mental condition. Hines admitted that he took Woods's sunglasses from his

face and ran away with them. Hines also admitted that in response to Woods finding him

in the bushes and demanding his glasses back, Hines broke the glasses and threw them in

the gutter. He also admitted that he punched Woods in the face, saying that he did so

because Woods began yelling for help.

2. Events of August 3, 2012 (counts 5-6)

On the morning of August 3, 2012, in the San Diego Central Jail, Sheriff's Deputy

Marie Chateigne placed waist chains and leg chains on Hines and escorted him to his

psychiatric appointment. Hines told Chateigne that she was beautiful and that he wanted

to marry her. Chateigne had warned Hines the prior day that he should not make

comments like that to her. Chateigne ignored the comments that Hines made on

August 3.

Later that morning, Deputy Chateigne escorted Hines from his medical

appointment back to his cell. Hines apologized to her for his earlier behavior. After

Chateigne removed Hines's leg chains, she moved Hines into his cell and closed and

6 locked the cell door. She then opened the flap covering over the food slot and instructed

Hines to put his hand through the food slot. She began removing Hines's waist chains.

Chateigne was briefly distracted, and Hines grabbed her left hand. He refused to let go of

her hand despite her order that he do so.

Deputy Chateigne managed to escape Hines's grip by tugging on the waist chain.

However, Hines then pulled the waist chain farther into his cell, causing Chateigne's left

hand and arm to be pulled through the food slot and into the cell. Chateigne released her

grip on Hines's waist chain, pulled her arm out, and closed the food flap.

Hines apologized to Deputy Chateigne for what he had done and promised that he

would not put up further resistance. Chateigne reopened the food flap and told Hines to

extend his arms through the slot. She then removed his waist chains. When Chateigne

walked past the front of the cell door, close to the food flap, Hines rushed the door, put

his face up to the food slot, and spit on Chateigne. After spitting on Chateigne, Hines

said, "[T]hat's what you get for talking to the Mexican in the other cell."

Deputy Chateigne suffered significant bruising from her upper bicep to her lower

forearm as a result of Hines's pulling her arm through the food slot. Although Chateigne

did not seek medical treatment for her injuries, the bruised arm caused her much pain

when it was touched, and the pain lasted for five days.

The trial court reviewed a video recording of Hines pulling Deputy Chateigne's

arm through the food slot.

7 B. Procedural background

A jury found Hines guilty of robbery (§ 211; count 1), assault likely to produce

great bodily injury (§ 245, subd. (a)(4); count 2), grand theft (§ 487, subd. (c); count 3);

and battery (§ 242; count 4).

In a bifurcated bench trial, the trial court found Hines guilty of battery on a police

officer (§ 243, subd. (c); count 5) and resisting an executive officer (§ 69; count 6). The

trial court also found true the allegations that Hines had suffered two prior prison terms

(§ 667.5, subd. (b)) and a serious felony conviction (§ 667, subd. (a)).

The trial court sentenced Hines to an aggregate term of 16 years four months in

prison.

Hines filed a timely notice of appeal.

III.

DISCUSSION

A. There is substantial evidence to support Hines's conviction for battery on a peace officer causing injury

Hines contends that there is insufficient evidence to support his conviction for

battery on a peace officer causing injury. Although he admits that his conduct in pulling

Deputy Chateigne's arm through the food slot to his cell caused bruising to Chateigne's

arm, he asserts that the "bruising, for which the deputy did not seek medical attention, did

not constitute an 'injury' within the meaning of Penal Code section 243, subdivision

(c)(2)," and requests that his conviction be reversed, or, at a minimum, reduced to a

misdemeanor.

8 In determining the sufficiency of the evidence to support a guilty verdict, "the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he

court must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557,

578.) " 'Substantial evidence includes circumstantial evidence and any reasonable

inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support

of the judgment the existence of every fact the trier could reasonably deduce from the

evidence.' " [Citation.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 943.)

Hines was convicted of violating section 243, subdivision (c)(2). That subdivision

must be read together with subdivision (c)(1) of the same section:

"(1) When a battery is committed against a custodial officer [or other identified individuals], and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years.

"(2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should

9 know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, or by both that fine and imprisonment." (Italics added.)

Subdivision (f)(5) of section 243 defines an "[i]njury" as "any physical injury

which requires professional medical treatment." However, " '[t]here is no requirement in

[section 243, subdivision (c) that] the victim of the battery actually receive medical

treatment.' " (People v. Hayes (2006) 142 Cal.App.4th 175, 181 (Hayes), quoting In re

Michael P. (1996) 50 Cal.App.4th 1525, 1528.) " 'It is the nature, extent, and seriousness

of the injury—not the inclination or disinclination of the victim to seek medical

treatment—which is determinative. A peace officer who obtains "medical treatment"

when none is required, has not sustained an "injury" within the meaning of section 243,

subdivision (c). And a peace officer who does not obtain "medical treatment" when such

treatment is required, has sustained an "injury" within the meaning of section 243,

subdivision (c). The test is objective and factual.' " (Hayes, supra, at p. 181, quoting

People v. Longoria (1995) 34 Cal.App.4th 12, 17.)

Hines relies on Hayes, supra, 142 Cal.App.4th 175, to suggest that there is

insufficient evidence in this case. He contends, "[t]he description of the injury in

appellant's case is strikingly similar to that in Hayes." According to Hines, the appellate

court in Hayes found that the facts in that case "constituted substantial evidence that the

'injury' was not one that met the requirements of the statute," and for this reason, the court

10 "reversed the defendant's conviction." Hines's reliance on Hayes is misplaced, however,

even if we assume that the injuries suffered by the victims in the two cases are similar.2

In Hayes, the appellate court was not addressing whether the injury that the victim

suffered was sufficiently serious to meet the requirements of the statute. Rather, the court

was addressing the defendant's argument that the trial court erred in failing to instruct the

jury on the lesser included offense of simple battery (i.e., without injury) on a probation

officer. (Hayes, supra, 142 Cal.App.4th at pp. 180-183.) On this question—i.e., whether

there was instructional error—the Hayes court agreed with the defendant, concluding that

given the evidence, "[a] reasonable jury could conclude that the injury to Phillips was not

severe enough to require professional medical treatment," and, as a result, the trial court

should have instructed the jury with respect to the lesser included crime of battery on a

probation officer. (Id. at p. 181.) The Hayes court found the error prejudicial and

reversed Hayes's conviction, giving the prosecutor the option of either retrying Hayes on

the greater offense, or accepting a reduction to the lesser offense. (Id. at pp. 183-184.) In

doing so, the Hayes court implicitly acknowledged that sufficient evidence had been

presented to support Hayes's conviction for battery on a peace officer causing injury, the

2 The injuries suffered by Phillips, the probation officer victim in Hayes, resulted from the defendant "kick[ing] a concrete ashtray that was next to Phillips. The kick appeared to be intentional. [The defendant] kicked 'as hard as he could' and 'with great force.' " (Hayes, supra, 142 Cal.App.4th at p. 179.) The 50-pound ashtray struck the probation officer "in the shin, ripping his pants and inflicting 'a four to four and a half inch laceration on [his] shin.' " (Ibid.) The court received two photographs of the laceration in evidence. There was some blood on the laceration, and " 'a little swelling.' " (Ibid.) The probation officer put ice on his injury the night after receiving it, but he did not choose to seek professional medical treatment. (Ibid.) The leg was sore for several days, and took approximately a week to heal. (Ibid.) 11 greater offense. Thus, despite Hines's reliance on Hayes, the opinion in that case actually

undermines Hines's position that the evidence in this case was insufficient to support his

conviction for the same crime.

In this case, the evidence is sufficient to support Hines's conviction for battery on

a peace officer causing injury. The bruising to Deputy Chateigne's arm was extensive

and severe. Chateigne testified that the bruising was "very painful" and that she suffered

pain when her arm was touched. The severe pain lasted for five days. The bruising

lasted much longer than that.3 Based on the evidence presented, the trial court could

have reasonably concluded that although Chateigne chose not to seek professional

medical treatment, her injuries were nevertheless the type that required medical treatment

within the meaning of the statute.

We therefore affirm Hines's conviction for battery on a peace officer causing

injury.

B. There is substantial evidence to support Hines's conviction for robbery

Hines was convicted of robbing Woods, in violation of section 211. He contends

that the evidence is insufficient to establish his guilt for this crime because, he asserts, the

evidence does not demonstrate that he had the intent to permanently deprive Woods of

his property or that the property was taken by means of force or fear.

3 The photographs of Deputy Chateigne's bruising that the trial court reviewed were taken a week after Chateinge suffered the injuries. Chateigne testified that on the day after she suffered the injuries, the bruising was "way more severe" than at the time the photographs were taken. 12 Robbery is the felonious taking of personal property in the possession of another

from his person or immediate presence, against the victim's will and accomplished by

means of force or fear. (§ 211; People v. Whalen (2013) 56 Cal.4th 1, 69.) A necessary

element of the crime of robbery is the intent to permanently deprive the owner of his or

her property. (People v. Anderson (2011) 51 Cal.4th 989, 1002.)

In reviewing Hines's contention with respect to his robbery conviction, we apply

the same legal standards as apply to claims for insufficient evidence, as outlined in part

III.A., ante.

There is substantial evidence that Hines took Woods's sunglasses by the use of

force or fear. During the initial encounter between the two men, Hines followed Woods

and told Woods that he was a West Side Crips gang member. A short time later, while

Woods was standing at a street corner waiting to cross, Hines stood near him and asked a

woman who was nearby, " 'You want to see what I do to him?' " Hines said this loudly

enough so that Woods could hear, and Woods interpreted the statement as Hines

indicating that he was planning to physically harm Woods. Woods was very nervous at

this point and wanted to get away from Hines. As Woods attempted to walk away, Hines

followed Woods, partially facing him, and made a gesture with his fist as if he were about

to hit Woods. Woods flinched and stopped in the middle of the street. It was at that

point that Hines snatched the sunglasses off of Woods's face and ran away. From these

facts, a jury could reasonably conclude that Hines intended to cause fear in Woods, and

that he in fact did so. Further, these facts support a conclusion that Hines used force to

take Woods's sunglasses from him.

13 In addition, the evidence is more than sufficient to support the conclusion that

Hines took Woods's sunglasses with the intent to permanently deprive Woods of them.

Hines and Woods did not know each other prior to this incident. As soon as Hines

grabbed the sunglasses off of Woods's face, he immediately ran away from Woods.

Hines admitted that he "stole" the sunglasses from Woods. Further, Hines threw the

sunglasses into the gutter only after Woods chased him and saw him hiding behind some

"sparse" bushes. The jury could reasonably infer that Hines's plan was to keep the

sunglasses, or, at a minimum, ensure that Woods did not get his sunglasses back, and that

this plan changed only after Woods followed Hines, spotted him, and said that he wanted

his sunglasses back.

The evidence presented at trial constitutes substantial evidence that Hines

committed a robbery against Woods.

C. Grand theft is a lesser included offense of robbery; because the jury convicted Hines of both robbery and grand theft, his conviction for robbery should be affirmed, and his conviction for grand theft, the lesser crime, should be reversed

Hines argues that his conviction for robbery should be reversed because the trial

court erred in failing to instruct the jury sua sponte that the crime of grand theft, of which

he was also charged and convicted, is a lesser included offense of robbery. According to

Hines, if the jury had been properly instructed, a reasonable jury could have concluded

that Hines committed only the lesser offense of grand theft, not robbery. Hines is only

partially correct. He is correct that the trial court should have instructed the jury that

grand theft is a lesser included offense of robbery. However, Hines is incorrect about the

remedy for this error.

14 The trial court instructed the jury with CALCRIM No. 1600 on the law pertaining

to robbery, as well as with CALCIM No. 1800 on the law pertaining to grand theft. The

court also instructed the jury that it had to unanimously agree on which act or acts

constituted the robbery. After being so instructed, the jury convicted Hines of both

robbery and grand theft.

"It is settled that the crime of theft, whether divided by degree into grand theft or

petty theft, is a lesser included offense of robbery. [Citation.] Robbery includes the

added element of force or fear. [Citation.]" (People v. DePriest (2007) 42 Cal.4th 1, 50.)

Further, a court "must instruct on general legal principles closely related to the case. This

duty extends to necessarily included offenses when the evidence raises a question as to

whether all the elements of the charged offense are present." (Ibid.)

"[W]hen the evidence is sufficient to support a finding of guilt of both the offense

charged and a lesser included offense, the jury must be instructed that if they entertain a

reasonable doubt as to which offense has been committed, they must find the defendant

guilty only of the lesser offense." (People v. Dewberry (1959) 51 Cal.2d 548, 555.) The

trial court has a duty to provide this instruction sua sponte, and the jury must be given

this instruction regardless whether the lesser offense is charged or uncharged. (People v.

Crone (1997) 54 Cal.App.4th 71, 78 (Crone).)

Hines was charged with both robbery and the lesser included offense of grand

theft, based on the same conduct. Thus, the trial court should have provided the

instruction identified in Dewberry sua sponte. However, the trial court's error is subject

to the harmless error analysis provided in People v. Watson (1956) 46 Cal.2d 818, 836.

15 (Crone, supra, 54 Cal.App.4th at p. 78.) Under Watson, reversal is not warranted unless

"it appears 'reasonably probable' the defendant would have obtained a more favorable

outcome had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 178.)

"The Supreme Court has emphasized 'that a "probability" in this context does not mean

more likely than not, but merely a reasonable chance, more than an abstract possibility.

[Citations.]' " (People v. Soojian (2010) 190 Cal.App.4th 491, 519.)

Contrary to Hines's argument on appeal, the trial court's failure to instruct the jury

in accordance with Dewberry was harmless as to Hines's robbery conviction because the

jury found Hines guilty of the crime of robbery beyond a reasonable doubt, and, as we

have already determined, there is substantial evidence to support this conviction. The

jury was instructed that jurors had to unanimously agree on the facts supporting a robbery

verdict. Given the strength of the evidence that Hines used force or fear to take Woods's

sunglasses with the intent to permanently deprive Woods of them, there is no reasonable

probability that Hines would have received a more favorable outcome if the trial court

had instructed the jury that if jurors entertained a reasonable doubt as to which offense

had been committed (i.e. robbery or grand theft), they must find the defendant guilty of

only the lesser offense. There is no basis to reverse Hines's robbery conviction.

Hines's conviction for grand theft, however, cannot stand. "When a defendant is

found guilty of both a greater and a necessarily lesser included offense arising out of the

same act or course of conduct, and the evidence supports the verdict on the greater

offense, that conviction is controlling, and the conviction of the lesser offense must be

reversed." (People v. Sanders (2012) 55 Cal.4th 731, 736.) The People concede that

16 Hines's conviction for grand theft must be reversed under this principle. We therefore

reverse Hines's conviction on count 3.

D. The one-year enhancement pursuant to section 667.5, subdivision (b) must be stricken because the trial court imposed a five-year enhancement pursuant to section 667, subdivision (a)(1)

Hines argues that the trial court erred in using one of his prior convictions to

impose both a one-year sentence enhancement under section 667.5, subdivision (b), as

well as a five-year sentence enhancement under section 667.5, subdivision (a)(1).

A court may not impose a five-year sentence enhancement under section 667,

subdivision (a)(1) and a one-year sentencing enhancement under section 667.5,

subdivision (b), based on the same prior prison term conviction. (People v. Perez (2011)

195 Cal.App.4th 801, 805 (Perez); People v. Jones (1993) 5 Cal.4th 1142, 1150-1153.)

When multiple sentence enhancement provisions are available with respect to the same

prior offense, one of which is a section 667 enhancement, the greatest enhancement

should be imposed. (Jones, supra, at p. 1150.)

The People concede that Hines is correct that the trial court relied on Hines's 2003

conviction to impose both a five-year sentence enhancement under section 667,

subdivision (a), and a one-year sentence enhancement under section 667.5, subdivision

(b). The People agree that this court should strike the one-year enhancement under

section 667.5, subdivision (b), and order that Hines's abstract of judgment be corrected to

reflect the striking of this enhancement. We accept the People's concession and order

that the one-year enhancement imposed under section 667.5, subdivision (b) must be

stricken. (See Perez, supra, 195 Cal.App.4th at p. 805.)

17

IV.

DISPOSITION

Hines's conviction for grand theft (count 3) is reversed, and the one-year sentence

enhancement imposed pursuant to section 667.5, subdivision (b) based on Hines's 2003

conviction in case No. SCD174231 is stricken. In all other respects, the judgment is

affirmed.

The trial court is directed to amend the abstract of judgment to reflect these

modifications and to forward the amended abstract of judgment to the Department of

Corrections and Rehabilitation.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

18