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Filed 9/27/ 21 P. v. Coe CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v. ROBERT GLEN COE,

Defendant and Appellant. C090068 (Super. Ct. No. CRF185016)

Defendant , Robert Glen Coe, doused the victim with gasoline and set him on fire after the victim became involved with defendant’s girlfriend and continuously trespassed

at defendant’s residence. He later said: “I was gonna make sure if she was gonna leave she was gonna leave with some body ugly.” A jury found d e fendant guilty of aggravated mayhem, arson causing great bodily injury, and criminal threats. The trial court imposed an aggregate eight

- year

- to

- life term.2

On appeal, defendant contends (1) the trial court erred in instructing the jury that
before it could consider lesser included offense s , it must first unanimously find defendant not guilty of the greater offense , and (2) the great bodily injury enhancement attached to
his criminal threats c onviction is unauthorized, or alternatively, un supported by
substantial evidence . We agree with the first contention but find the error harmless

. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
D efendant was living in his godfather’s “mother

- in

- law’s quart ers” behind the main house. The victim was occasionally invited to the home by another resident but would also show up uninvited. Defendant’s godfather did n’t want the victim on the property and repeatedly said he was not allowed there. Defendant too , on multiple
occasions , told the victim to leave the house over the course of six or eight months, but the victim always came back. At the time of the incident, defendant had been dating his girlfriend for two or three months and she sometimes stayed with him in the house. At some point, the victim
became romantically involved with defendant’s girlfriend. The victim believed defendant was jealous of their relat ionship ; defendant testified he was not

. A week or two before the incident, the victim came to the house and asked to be
let inside . D efendant sprayed him in the face with wasp spray and threate ned to use the spray as a flamethrower.
T he day of the incident, the victim was at the residence with defendant’s girlfriend. Defendant confronted the victim and told him to leave. The victim refused , insisting another resident had allowed him to be there . D efendant then escorted him off the property. But the victim soon returned , angering defendant. The victim made his way to one of the bedrooms in the house and sat on a couch with defendant’s girl friend. Defendant went outside and poured gasoline into a cup. He returned with a lighter
in his hand and splashed the victim in the face and the front of his body with the gasoline.3

Defendant said, “ ‘ What do you think now motherfucker? I told you you’re not
suppose [d] to be here

. ’ ” He immediately began sparking the lighter close to the victim.
Defendant t old the victim he was going to set him on fire.
The victim got up and tried to leave, making it as far as the hallway. B ut defendant stood b etween him and the front door . Defendant’s girlfriend was between the

two men as defendant continued to reach around her and spark the lighter toward the
victim . The victim testified he was fearful for his life and thought defendant was going
to set him on fire, so he reached around defendant’s girlfriend to punch defendant in the
face. As the victim ran toward the front door, he became engulfed in flames. The girlfriend cursed defendant and screamed at him to put out the flames. She covered the victim with a blanket in an effort to put out the flames and defendant helped. The victim eventually went to the front yard where he sat in front of a hose and let the water run over his body.
The victim suffered third degree burns on about 20 percent of his body. He was hospitalized for over two weeks and underwent multiple skin graft surgeries. He was left with burn scars on his extremities, chest, and chin, as well as permanent nerve damage. At trial, a rec ording of d efendant’s jail visit with his sister was played for the jury

. In it, h e told his sister the victim was “mess[ing] around too much with my girl,” and was “taking my girlfriend and I wasn’t gonna fucking have that .” When his sister said , “No girl is worth fighting over like that,” defendant said , “I wasn’t gonna lose her, I still love her.” He also said “ I was gonna make sure if she was gonna leave [ , ] she was gonna leave
with some body ugly.” He also told his sister the victim “took two swings” at him, and he
set him on fire in self

- defense.
At trial, d efendant testified he “threw the gas on [the victim] because he kept coming in there risking my place and my place to live. He was coming risking everything, my house, my job, my money, myself, my girl.” Defendant later testified he4

set the victim on fire in self

- defense “to save [himself] from being beaten.” He maintained he did not intend to kill, but feared the victim was armed with a gun or bolt

cutters. He did not mention these we apons in the conversation with his sister at the jail.
When asked on cross

- examination whether he knew lighting the victim on fire could have killed him, defendant responded that he knew it could “ kill both of us.”
Verdict s and Sentencing The jury found defendant guilty of aggravated mayhem (Pen. Code, § 205) 1 , arson causing great bodily injury (§ 451, subd. (a)), and criminal threats (§ 422). The jury found defendant not guilty of attempted murder (§664, subd. (a)/§187, subd. (a)).
The trial co urt imposed an aggregate eight

- year

- to

- life term, consisting of an indeterminate term of seven years to life for aggravated mayhem and a one

- year deadly weapon enhancement (§ 12022, subd. (b)(1)). It also imposed an aggregate 22

- year determinate term for arson causing great bodily injury and criminal threats , but stayed
execution of those sentences under section 654

. 2

1 Undesignated statutory references are to the Penal Code.

2 The imposed and stayed term s consisted of nine years for arson causing great bodily injury (the upper term), plus a five

- year use of an accelerant enhancement (§ 451.1, subd. (a)(5)) and a one

- year deadly weapon enhancement (§ 12022, subd. (b)(1)), as well as three years for criminal threats (the upper term) (§ 422), with a three

- year great bodily injury enhancement (§ 12022.7, subd. (a)) and a one

- year deadly weapon enhancement (§ 12022, subd. (b)(1)).5 DISCUSSION
I. Lesser Included Offenses Instruction On appeal, defendant contends the trial court erred in instructing the jury that
before it could consider a lesser included offense , it must first unanimously find
defendant not guilty of the greater offense. 3 The People concede the error , and we agree. At trial, the jury was instructed on aggravated mayhem , and then the lesser
included offenses of mayhem, simple battery, and simple assault. Between each
instruction the court told the jury , “Do not consider this crime unless you find the defendant not g uilty of [the greater offense].” ( I talics added.) We agree the instructions given were erroneous but find the error harmless. A. Analysis A jury may not return a guilty verdict on a lesser offense without unanimously finding the defendant not guilty of the greater offense . However, nothing preclude s a jury from considering lesser offenses during deliberations before returning a verdict on

t he greater offense. ( People v. Kurtzman (1988) 46 Cal.3d 322, 329 .) Accordingly, a “trial court errs if it instructs the jury ‘not to “deliberate on” or “consider” ’ a lesser included offense until the jury has acquitted the defendant of the greater offe nse.” ( People v. His h meh (2020) 52 Cal.App.5th 46, 52

- 53, citing Kurtzman , at p. 335 and People v. Olivas (2016) 248 Cal.App.4th 758, 77 4 ( Olivas ) .) Thus, the trial court’s instructions here ran afoul of Kurtzman and were in error.

3 The People contend defendant’s argument is forfeited because his trial counsel failed to object to the instructio n. We disagree. On appeal, the rule of forfeiture does not apply to an instruction that misstates the law. ( People v. Franco (2009) 180 Cal.App.4th 713, 719.)6 B. Harmless Error Analysis Kurtzman error is analyzed pursuant to People v. Watson (1956) 46 Cal.2d 818,
836. 4 ( Olivas , supra, 248 Cal. App.4th at p. 775

. ) Reversal is required where it is reasonably probable the jury would have reached an outcome more favorable to the defendant without the error. ( Watson , at pp. 836

- 837.) “[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that eva luation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability t he error of which the defendant complains affected the result.’ ” ( People v. Beltran (2013) 56 Cal.4th 935, 956.) Defendant maintains the error was prejudicial because his trial counsel argued
defendant did not possess the specific intent to maim required for aggravated mayhem. 5
And , under the instructions given, the jury could not compare the elements of aggravated mayhem to those of simple mayhem, a general intent crime, to d etermine if the lesser
offense more closely matched his culpability

. Further , since the jur y found defendant not guilty of attempted murder, it was reasonably probable it would have concluded he did

4 Defendant maintains the error infringed on his federal constitutional rights and should be analyzed under Chapman v. California (1967) 386 U.S. 18, 24. We disagree. ( People v. Berryman (1993) 6 Cal.4th 1048, 1077 , fn. 7 [finding Kurtzman error “appears to implicate California law only”].)

5 The jury was instructed that, to find a defendant guilty of aggravated mayhem, “the people must prove that: 1. The defendant unlawfully and maliciously disabled or disfigured someone permanently; 2. When the defendant acted, he intended to permanently disable or disfigure the other person ; AND 3. Under the circumstances, the defendant’s act showed extreme indifference to the physical or psychological well

- being of the other person.” (§ 205; CALCRIM No. 800 , italics added. )7

not have the specific intent to maim the victim, especially because defendant took part in putting out the flames. We disagre e. Overwhelming evidence supported defendant’s conviction for aggravated mayhem
and thus there was no reasonable probability of a more favorable outcome absent the

error. W hile defense counsel argued defendant lacked specific intent to maim, defendant’s o wn words showed otherwise

. T he jury heard a recording of defendant saying he lit the victim on fire because if his girlfriend were to leave him, he was going to
make sure she left with “someone ugly.” Indeed , the inescapable result of dou sing

someone with gasoline and setting him alight is permanent disfigur ation

. D efendant had
threatened to set the victim on fire in the past

. On this occasion, defendant went outside, poured gasoline into a cup, went inside the house and approached the victim with the gasoline and a lighter. He then splashed the gas on the victim ’s face

. Th us , the evidence overwhelming ly demonstrates specific intent to mai m , and a more favorable outcome was not reasonably probable

. We are also unpersuaded by defendant’s argument that by helping to put out the
flames , he demonstrate d lack of a specific intent to maim. By the time he helped extinguish the flames at the direction of his gir l friend , the offense was already completed
and the permanent damage had b een inflicted

. Moreover, a reasonable jury could infer that p utting out the flames was necessary to avoid damage to the interior of the house before the victim made his way outside

. We further note that, had the jury not been convinced beyond a reasonable doubt
that defendant had the intent to permanently disfigure, nothing precluded it from returning a guilty verdict on the lesser included offense, based on the instructions given

. The contention therefor e fails.

II. Great Bodily Injury Enhancement On ap peal, defendant contends the great bodily injury enhancement sentence attached to his conviction for criminal threats (and stayed pursuant to section 654 ; see fn.8

2 , ante ) is unauthorized, or alternatively, is not supported by substantial evidence. We disagree.
A. Unauthorized Sentence An unauthorized sentence is one that cannot “ ‘ lawfully be imposed under any circumstance in the particular case. ’ ” ( People v. Roth (2017) 17 Cal.App.5th 694, 702

- 703; People v. Scott (1994) 9 Cal.4th 331, 354.) A great bodily injury enhancement can be imposed upon “[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the
commission of a f

elony or attempted felony

. . . . ” (§ 12022.7, subd. (a) , italics add ed

. )

“ ‘ In the commission ’ of” has been interpreted to mean “ any time during and in furtherance of

” the underlying felony. ( People v. Bland (1995) 10 Cal.4 th 991, 999.) To that, d efendant argues gr eat bodily injury cannot occur during the commission
of criminal threats because a crimin al threat is a “static” offense , complete d once it is uttered. And since one can never inflict great bodily injury from the utterance of words,
the attachment cannot be authorized. H e is mistaken. “A violation of section 4 22 [criminal threats] is not complete upon the issuance of a threat; it depends on the recipient of the threat suffering ‘sustained fear’ as a result of
the communication. ” 6 ( Peop le v. Wi lson (2015) 234 Cal.App.4th 193, 20 1 ; § 422

. ) And
h ere, the victim’s sustained fear was contributed to

— in no small part

— by d efendant ’s

6 The offense of making criminal threats requires that: (1) defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person; (2) defendant made the threat with specific intent that the statement be taken as a threat, ev en if he did not intend to carry it out; (3) the threat was on its face and under the circumstances so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat ; (4) the threat caused the victim to be in sustained fear for his own safety or for his immediate family’s safety; and (5) the victim’s fear was reasonable under the circumstances. ( People v. Fruits (2016) 247 Cal.App.4th 188, 210 , fn. 8.)9

physical act of actually setting him ablaze. While the verbal threat had already been uttered when the victim was injured, sustained fear arises over “ ‘ a period of time “ that extends beyond what is momentary, fleeting, or transitory. ” ’ ” ( Ibid .) Here, the injury

was inflicted during the period in which the victim’s fear was becoming sustained. 

### Moreover, not only did lighting the fire help to sustain the victim’s fear , it also effectuated the “immediate prospect of execution of the threat.” (See fn. 6 , ante .)
T hus , the injury occurred in the commission of the threat

. Therefore, the sentence
is authorized.
B. Substantial Evidence Defendant alternatively contends the great bodily injury enhancement attached to the criminal threat charge is un supported by substantia l evidence because the victim’s injury occurred after the threat was completed and thus did not occur in the commission
of the offense. Again, w e disagree. 

### Substantial evidence exists for the same reason s discussed above: Defendant’s physical conduct

— culminating in hi s lighting the victim on fire

— took place during the period the victim’s fear was being sustained and that conduct facilitated the sustaining of that fear and effectuat ed the immediate prospect of execution of the threat

. Thus, there wa s substantial evidence the injuries 

### w ere inflicted in the commission of the offense

. T herefore, t he jury’s verdict was supported by substantial evidence. ( People v. Zamudio (2008) 43 Cal.4th 327, 357 [ a finding of “ insufficient evidence ‘ is unwarranted u nless it appears “ that upon no hypothesis whatever is there sufficient substantial evidence to support ” ’ the jury’s verdict”].)
D efendant’s contention fails.10 DISPOSITION The judgment is affirmed.

/s/ MURRAY, J.

We concur:

/s/ ROBIE, Acting P. J.

/s/ DUARTE, J.