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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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 somebody ugly.” A jury found defendant guilty of aggravated 

mayhem, arson causing great bodily injury, and criminal threats. The trial court imposed 

an aggregate eight-year-to-life term. 
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On appeal, defendant contends (1) the trial court erred in instructing the jury that 

before it could consider lesser included offenses, it must first unanimously find defendant 

not guilty of the greater offense, and (2) the great bodily injury enhancement attached to 

his criminal threats conviction is unauthorized, or alternatively, unsupported by 

substantial evidence. We agree with the first contention but find the error harmless. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was living in his godfather’s “mother-in-law’s quarters” behind the 

main house. The victim was occasionally invited to the home by another resident but 

would also show up uninvited. Defendant’s godfather didn’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 relationship; defendant testified he was not. 

A week or two before the incident, the victim came to the house and asked to be 

let inside. Defendant sprayed him in the face with wasp spray and threatened to use the 

spray as a flamethrower. 

The 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. Defendant 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 girlfriend. 

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. 
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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 told 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. But 

defendant stood between 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 recording of defendant’s jail visit with his sister was played for the jury. 

In it, he 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 somebody ugly.” He also told his sister the victim “took two swings” at him, and he 

set him on fire in self-defense. 

At trial, defendant 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 he 
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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 weapons 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.” 

Verdicts 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 court 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.

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1 Undesignated statutory references are to the Penal Code.

2 The imposed and stayed terms 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)). 
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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 guilty of [the greater offense].” (Italics 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 precludes a 

jury from considering lesser offenses during deliberations before returning a verdict on 

the 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 offense.” 

(People v. Hishmeh (2020) 52 Cal.App.5th 46, 52-53, citing Kurtzman, at p. 335 and 

People v. Olivas (2016) 248 Cal.App.4th 758, 774 (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 instruction. 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.)
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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 evaluation, 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 the 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 determine if the lesser 

offense more closely matched his culpability. Further, since the jury 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.)
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not have the specific intent to maim the victim, especially because defendant took part in 

putting out the flames. We disagree.

Overwhelming evidence supported defendant’s conviction for aggravated mayhem 

and thus there was no reasonable probability of a more favorable outcome absent the 

error. While defense counsel argued defendant lacked specific intent to maim,

defendant’s own words showed otherwise. The 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 dousing 

someone with gasoline and setting him alight is permanent disfiguration. Defendant 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. Thus, the evidence 

overwhelmingly demonstrates specific intent to maim, 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 demonstrated lack of a specific intent to maim. By the time he helped 

extinguish the flames at the direction of his girlfriend, the offense was already completed

and the permanent damage had been inflicted. Moreover, a reasonable jury could infer 

that putting 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 therefore fails.

II. Great Bodily Injury Enhancement

On appeal, defendant contends the great bodily injury enhancement sentence

attached to his conviction for criminal threats (and stayed pursuant to section 654; see fn. 
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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 felony or attempted felony . . . .” (§ 12022.7, subd. (a), italics added.) 

“ ‘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.4th 991, 999.)

To that, defendant argues great bodily injury cannot occur during the commission 

of criminal threats because a criminal threat is a “static” offense, completed once it is 

uttered. And since one can never inflict great bodily injury from the utterance of words,

the attachment cannot be authorized. He is mistaken.

“A violation of section 422 [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.”

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 (People v. Wilson (2015) 234 Cal.App.4th 193, 201; § 422.) And 

here, the victim’s sustained fear was contributed to — in no small part — by defendant’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, even 

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.)
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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.) 

Thus, 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 unsupported by substantial evidence because the victim’s 

injury occurred after the threat was completed and thus did not occur in the commission 

of the offense. Again, we disagree.

Substantial evidence exists for the same reasons discussed above: Defendant’s

physical conduct — culminating in his 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 effectuated the immediate prospect of execution of the threat. 

Thus, there was substantial evidence the injuries were inflicted in the commission of the 

offense. Therefore, the jury’s verdict was supported by substantial evidence. (People 

v. Zamudio (2008) 43 Cal.4th 327, 357 [a finding of “insufficient evidence ‘is 

unwarranted unless it appears “that upon no hypothesis whatever is there sufficient 

substantial evidence to support” ’ the jury’s verdict”].)

Defendant’s contention fails.
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DISPOSITION

The judgment is affirmed.

 /s/

MURRAY, J.

We concur:

 /s/

ROBIE, Acting P. J.

 /s/

DUARTE, J.