P. v. Jones
Filed 1/28/14 P. v. Jones 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NOT TO BE PUBLISHED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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----
THE
PEOPLE,
Plaintiff and
Respondent,
v.
STEVEN
JONES,
Defendant and
Appellant.
C071889
(Super. Ct. No. 09F01893)
During
a prison disturbance, defendant Steven Jones punched a correctional officer in
the face. An
defendant with battery on a nonconfined person by a prison inmate and
possession of a sharp instrument by an inmate.
(Pen. Code, §§ 4501.5, 4502, subd. (a).)
guilty on both counts and the court sentenced him to two consecutive 25-years-to-life
terms. On appeal, defendant argues the
trial court’s decision to shackle him at trial
was made in the absence of manifest necessity, and the court committed
error. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008
a prison fight broke out. Prison
officers responded, and as an officer attempted to handcuff defendant,
defendant punched another officer in the face and continued to strike the
officer as he lay on the ground. After
he was subdued, officers found a sharpened metal object in defendant’s shoe.
An
information charged defendant with battery on a nonconfined person by a prison
inmate and possession of a sharp instrument
by an inmate. The information also
alleged defendant had suffered two prior strike convictions within the meaning
of sections 667, subdivisions (b)-(i) and 1170.12.
A
jury trial followed. The following evidence was introduced at
trial.
One
afternoon in September 2008 an alarm sounded, alerting prison officers that two
inmates were fighting in the prison yard.
Following prison procedures, the tower officers ordered all inmates in
the yard to get down into a prone
position. Four inmates failed to comply
and crouched down, fists clenched as if they were going to charge toward
responding officers.
Several
officers approached the crouching inmates and ordered them down; they
refused. A short distance from the
inmates, the officers formed a “skirmish line,†ordering defendant, the closest
inmate, to stand up, turn around, and back toward the officer to be handcuffed.
Defendant
took a few steps as ordered, then turned around and faced an officer. When the officer ordered him to turn back around,
defendant refused. Several other
officers ordered defendant to turn back around; defendant turned halfway
around. Defendant clenched his fists.
As
an officer reached out to handcuff defendant, defendant punched another officer
in the face. The officer fell backward,
hitting his head on the concrete.
Defendant straddled the officer and struck him several more times. The officer lost consciousness.
An
officer struck defendant with his baton; another officer pushed defendant off
the supine officer. Officers subdued
defendant and placed him in restraints.
Officers
took defendant on a gurney to the prison’s medical treatment center. En route, defendant asked an officer, “ ‘What
happened to your partner I hit?’ â€
Defendant continued: “ ‘I should
not have . . . came out of my cell this drunk. That Pruno tasted so damn good, though.’ †“Pruno†refers to inmate-produced alcohol
made from fermented fruit and other ingredients.
Defendant
stated the officer got hit “ ‘because he did not warn me. He was in my way. [¶] . . . [¶]
. . . He is always going to remember that right I hit him with. [¶] . . . [¶]
. . . I know I fucked him up, but he needs to get off that gurney.’ †The injured officer had also been transported
via gurney to the medical treatment center.
Defendant also said: “ ‘I am a
mean person when I am mad and he found that out.’ â€
When
an officer at the medical treatment center collected defendant’s clothing for
evidence, he also removed defendant’s shoes.
As the officer pulled off the left shoe, defendant said: “ ‘Be careful, I have something in there.’ †Inside the left shoe, the officer found a
metal object sharpened to a point at one end, with a taped handle. Inmates are not allowed to possess such items
because they present a danger to both inmates and correctional officers.
The
defense presented no evidence. The jury
found defendant guilty on both counts and found him sane as to both
counts. The court found the prior strike
allegations true and sentenced defendant to two consecutive terms of 25 years
to life. Defendant filed a timely notice
of appeal.
DISCUSSION
Restraint During Trial
Defendant
argues there was no showing of manifest necessity requiring his restraint at
trial. Therefore, the court erred in
ordering his restraint in violation of his rights to due process and a fair
trial.
Background
Prior to
trial, the court held a hearing stemming from concerns expressed by prison
officials. The officials requested
defendant be restrained by handcuffs as well as waist and leg chains. At the hearing, an officer testified
defendant was serving 19 years for assault with a deadly weapon. Officers considered defendant a high-risk inmate
for purposes of transporting him off prison grounds. The possibility of an additional term
stemming from the current charges increased the risk. Defendant was a maximum security inmate. A placement score of 52 or higher receives a
maximum security classification; defendant received a score of 281.
In
1992 defendant escaped from the California Youth Authority. While in prison, defendant participated in a
riot and committed two counts of battery on an inmate, two counts of possession
of a weapon, two counts of mutual combat, assault on an inmate with a weapon,
and battery on a peace officer. An
officer testified that defendant presented a significant threat to the security
of the court and that the policies of the Department of Corrections and
Rehabilitation required full restraints at all times on high-risk inmates when
transported off prison grounds. The
officer did allow that defendant’s hands could remain free as long as his waist
chains remained fastened to the chair.
The
court stated the waist chains and ankle restraints could be covered and not
visible to the jury. However, defense
counsel objected to the restraints even if they were not visible.
The
court noted restraints should not be imposed absent a showing of manifest
need. Manifest need may be based on
evidence of a defendant’s nonconforming conduct while in custody, such as evidence
of escape from custody, threats or assaults against custodial officers or other
inmates while in custody, and/or possession of weapons in jail. The court found that defendant engaged in
these behaviors and ordered a nonvisible waist chain and ankle restraints, but
ordered defendant’s hands be unencumbered.
Discussion
Defendant
disputes the trial court’s finding of manifest need in imposing
restraints. He argues, “it appears that the
trial court simply deferred to the Department of Correction[s] officer’s
expressed fear that [defendant] might somehow act out. There was no particular evidence that [defendant]
had an intention to harm anyone in the courtroom, escape, or disrupt the
proceedings. There was no evidence that [defendant]
had assaulted, or threatened any attorney, judge, or other court personnel in
the past. In fact, it appears that [defendant]
had acted entirely appropriately during his trial on competency.â€
A
defendant may be subjected to physical restraints while in the jury’s presence
upon a showing of manifest need.
Manifest need may be found when the evidence reveals the defendant has
threatened jail deputies, possessed weapons while in custody, threatened or
assaulted other inmates, and/or engaged in violent outbursts in court. (People v.
Lewis and Oliver (2006) 39 Cal.4th 970, 1031 (Lewis and Oliver).) The court’s
decision to impose restraints must be based on facts in the record. (People
v. Lomax (2010) 49 Cal.4th 530, 561.)
Moreover, the court must make its own determination and not simply defer
to the opinions of officers. (
We uphold the trial court’s decision absent a manifest abuse of
discretion. (Lewis and Oliver, supra,
39 Cal.4th at p. 1032.)
Physical
restraints should be as unobtrusive as possible, but as effective as necessary
under the circumstances. Any error in
imposing restraints is harmless if there is no evidence the jury was aware of
the shackles during trial or that the restraints impaired the defendant’s
ability to participate in the defense. (
1201, 1217; People v.
Here,
the court considered the factors set forth in Lewis and Oliver and determined defendant met the criteria for a
manifest necessity for restraint. The
current charges centered on defendant’s assault of a correctional officer and
possessing a weapon while in custody.
Defendant had also participated in a riot, committed battery on a fellow
inmate, possessed a weapon, and committed battery on a peace officer. In addition, defendant had previously escaped
from the California Youth Authority.
The
trial court was not “simply deferring†to correctional officers. The court heard testimony from officers detailing
defendant’s past actions that justified a finding of manifest necessity. The court considered the evidence under
sufficient. In addition, the court
ordered the least obtrusive restraints possible, which could not be seen by the
jury and which left defendant’s hands free.
There was no abuse of discretion.
Prior Conviction as a Strike
Defendant
contends his prior conviction under section 245, subdivision (a)(1) does not
qualify as a serious felony under the “three strikes†law because it does not
necessarily involve the use of a weapon.
According to defendant, the trial court erroneously applied the rule of
(Guerrero), which allows the trial
court to consider the entire record of conviction when trying a prior
conviction allegation to enhance a defendant’s sentence.
Background
The
information alleged defendant had suffered two prior serious or violent felony
convictions within the meaning of the three strikes law: a 2004 conviction for assault with a semiautomatic
firearm and a 1998 conviction for assault with a deadly weapon. (§§ 245, subds. (b), (a)(1).) Defendant argued the record did not establish
the 1998 conviction was a strike. In
order to be a strike, the assault with a deadly weapon had to involve a weapon,
and it was possible to violate the statute with an assault by means of force
likely to produce great bodily injury rather than with a deadly weapon. The court found both strike allegations
true. The court based its finding on People’s
exhibit Nos. 8, 9, and 10: the
complaint, pretrial memorandum, transcript of the plea proceeding, and the
abstract of judgment.
Discussion
Defendant
argues his 1998 conviction for assault with a deadly weapon does not qualify as
a strike because it did not necessarily involve the use of a weapon. He contends the trial court erred in
following Guerrero,
entire record of conviction in evaluating the prior conviction special
allegation. Specifically, defendant
cites more recent United States Supreme Court cases—Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311] (
S. 466 [147 L.Ed.2d
435] (Apprendi); Blakely v.
Washington (2004) 542 U.S. 296
[159 L.Ed.2d 403] (Blakely); and
[161 L.Ed.2d 205] (Shepard)—which require
courts to ignore Guerrero and apply
627. Alfaro
holds that evidence which can be used to prove a prior conviction
allegation is limited to the judgment and matters necessarily adjudicated
therein. (Alfaro, supra, 42 Cal.3d
at pp. 634-636.) Guerrero held that “in determining the truth of a prior-conviction
allegation, the trier of fact may look to the entire record of the
conviction.†(Guerrero, supra, 44
Cal.3d at p. 345.)
Here,
the trial court determined defendant’s 1998 conviction involved the use of a
deadly weapon based on the charge in the complaint, the court’s pretrial
memorandum, and the transcript of the proceedings in which defendant entered a
plea of no contest. In the complaint,
the charge states the assault was committed with a deadly weapon, “to wit, prison
made weapon.†The alternative method of
violating section 245, subdivision (a)(1) was stricken from the
complaint. The court’s pretrial
memorandum indicates the punishment for the crime would be four years and it would
be a “strike.â€
The
transcript of defendant’s 1998 plea of no contest to the assault with a deadly
weapon charge reveals that the charge originally included a weapon use
enhancement, which was stricken as part of the plea bargain. Defendant stated he understood the nature of
the crime was assault with a prison-made weapon and that he personally used
such a weapon. Defendant’s plea was
based on his attack on another inmate at the youth correctional facility. Defendant struck the victim several
times. A six-inch “shank†was found
nearby, and the victim suffered numerous puncture wounds. At the 1998 hearing, the court advised
defendant that the offense he was pleading to was a “strike,†meaning that the
punishment for any future felony conviction would be doubled and he would have
to serve at least 80 percent of the time imposed.
Here,
the trial court sentenced defendant in compliance with Guerrero, referring to the record of the 1998 conviction. We are not persuaded by defendant’s efforts
to cast doubt on Guerrero.
Defendant
argues the federal double jeopardy clause precludes the prosecution “from
adding facts to those necessarily adjudicated within a prior conviction when
those additional facts are legally essential to the defendant’s sentence.†However, defendant concedes the United States
Supreme Court rejected this contention in Monge
v. California (1998) 524 U.S. 721 [141
L.Ed.2d 615] and Almendarez-Torres v.
United States (1998) 523 U.S. 224
[140 L.Ed.2d 350].
In
addition, defendant contends “in the absence of a special verdict reflecting a
judge’s or jury’s findings on additional facts, or in the absence of a
defendant’s admission to additional facts as part of a guilty plea,
adjudicated elements of the offense of conviction.†To permit consideration of additional facts
that are not necessarily reflected in the plea or guilty verdict would run
afoul of Blakely and
record, which revealed defendant had waived his right to a jury trial; admitted
the charge, which included a weapon allegation; and acknowledged it would be a
strike. The trial court did not rely on
any additional facts.
Moreover,
numerous courts have reaffirmed Guerrero since
the holdings in Jones,
cast doubt upon Guerrero. (See People
v. Trujillo
v. McGee (2006) 38 Cal.4th 682, 691-692; People v. Woodell (1998) 17 Cal.4th 448, 459; People v. Maestas (2006) 143 Cal.App.4th 247, 251.) In
767, the appellate court explicitly rejected an argument based on
In Gonzales the defendant,
citing Shepard, argued the trial
court improperly relied on the preliminary hearing transcript to determine whether
he personally used a firearm in the commission of the offense, which would
render the prior conviction a serious felony.
After distinguishing Shepard,
the appellate court found the trial court did not violate the principles set
forth in Shepard by admitting
evidence of the preliminary hearing transcript as part of the record of
conviction of defendant’s prior serious felony. (Gonzales, at pp. 772-775.)
Defendant neither cites nor discusses Gonzales.
Finally,
defendant argues “The issue of whether a prior conviction for . . . assault
with a deadly weapon/by means likely to inflict great bodily injury,
constitutes a ‘strike’ offense, goes far beyond the bare fact of the conviction
based upon the facts necessarily found by a jury or admitted by the
defendant. Rather, they all require
finding[s] of additional potentially
disputed facts, which respondent contends is permissible under
under the Apprendi line of
cases.†Again, the record reveals the
trial court relied on the complaint and the transcript of the plea proceedings
in the 1998 conviction, not on any additional potentially disputed facts. We find no error.
Instructional Error
Defendant
was charged with possession of a sharp instrument in violation of section 4502,
subdivision (a). Defendant contends the
trial court erred in denying his request to modify CALCRIM No. 2745 to allow
the jury to consider that a sharp instrument could be used in a harmless
manner.
Background
The
trial court instructed the jury as to the charge of possession of a sharp
instrument: “The defendant is charged in
Count 2 with possessing a weapon, specifically a sharp instrument, while in a
penal institution in violation of Penal Code section 4502.
“To
prove that the defendant is guilty of this crime, the People must prove that:
“1.
The defendant was present at or confined
in a penal institution;
“2.
The defendant possessed, or had under
his custody or control a sharp instrument;
“3.
The defendant knew that he possessed or
had under his custody or control the sharp instrument;
“AND
“4.
The defendant knew that the object was a
sharp instrument that could be used as a stabbing weapon. [¶] . . . [¶]
“A
sharp instrument includes an instrument that is sharp, and that can be used to
inflict injury and that is not necessary for the inmate to have in his
possession.
“The
People do not have to prove that the defendant used or intended to use the
object as a weapon. [¶] . . . [¶]†(CALCRIM No. 2745.)
During
jury instruction discussions defense counsel requested that the court add to
CALCRIM No. 2745 the phrase, “[Y]ou may consider evidence that the object could
be used in a harmless way in deciding if the object is . . . a sharp
instrument.†The court found the
proposed modification unhelpful. The
court noted anything could be used in a harmless way.
Defense
counsel argued that the requested modification went “to the defendant knowing
that the object was a sharp object that could be used as a stabbing
weapon.†The prosecution countered that
the knowledge that the object could be used as a stabbing weapon was not an
element of the offense.
The
court found whether or not an object could be used in a harmless manner was
irrelevant. The court concluded: “It could have a dual purpose. So the fact that you could create or come up
with some benign use or some common use doesn’t defeat its criminality.†The court declined to give the proposed
modified instruction.
Discussion
Defendant
argues the proposed modification was appropriate and the court erred in denying
his request. According to defendant, the
proposed modification was necessary to save section 4502 from unconstitutional
vagueness as applied to the facts of this case.
Section 4502, subdivision (a) provides, in part: “Every person who, while at or confined in any
penal institution, . . . possesses or carries upon his or her person or has
under his or her custody or control any . . . dirk or dagger or sharp
instrument . . . is guilty of a felony and shall be punished by imprisonment in
the state prison . . . .â€
The
trial court must instruct on general principles of law closely connected to the
facts and necessary for the jury’s understanding of the case. (People
v. Avila (2006) 38 Cal.4th
491, 567.) In addition, defendant is
entitled to instructions that pinpoint the defense theory, if requested, when
supported by substantial evidence. (
Here,
no substantial evidence supports defendant’s requested instruction. At trial, an officer testified that as he
attempted to remove defendant’s shoes at the medical treatment center,
defendant said, “ ‘Be careful, I have something in there.’ †Inside defendant’s shoe, the officer found a
metal object sharpened to a point on one end with a handle made of tape at the
other end. Nothing in the evidence at
trial supports any inference that the confiscated sharp object was “used to
make holes in wall art and decorations, in order to allow them to be hung on a
cell wall, which would have amounted to a harmless purpose†as defendant
suggests.
Moreover,
in People v. Custodio (1999) 73 Cal.App.4th 807, this court
found the “sharp instrument†provision of section 4502 is not
unconstitutionally vague. We rejected
the argument that “sharp instrument†was unconstitutionally vague because it
could apply to pencils as well as to the etching tool the defendant was charged
with possessing. A person of ordinary
intelligence would understand that the statute would not apply to a pencil,
which is ordinarily used for a legitimate purpose, unless the inmate uses the
pencil as a weapon. (
Resentencing Under Proposition 36
Defendant
contends he is entitled to be sentenced under the ameliorative provisions of
Proposition 36. Defendant was sentenced
as a “three striker†on August 9, 2012. He argues the changes in the three strikes
law enacted after his sentencing should apply retroactively and require his
resentencing.
Background
On
November 6,
2012, the voters passed Proposition 36,
which enacted the Three Strikes Reform Act of 2012 (Act), effective November 7, 2012. The Act amended sections
667 and 1170.12 to lessen the sentences that may be imposed in cases involving
nonviolent, nonserious felonies committed after two prior strikes. (Ballot Pamp., Gen. Elec. (Nov. 7, 2012) text
of Prop. 36, §§ 2, 4, pp. 105-109 (Pamphlet).)
In addition, the Act added section 1170.126, providing a distinct
resentencing option “to persons presently serving an indeterminate term of imprisonment
pursuant to†the three strikes law. (§
1170.126, subd. (a); see Pamphlet, supra,,
§ 6, pp. 109-110.) Section 1170.126
gives the trial court discretion not to resentence a person who “would pose an
unreasonable risk of danger to public safety.â€
(§ 1170.126, subd. (f).) Under
amended sections 667 and 1170.12, the court enjoys no such discretion. (§§ 667, subd. (e), 1170.12, subd. (c).)
Discussion
Defendant
argues sections 667, subdivision (e)(2) and 1170.12, subdivision (c)(2) apply
to him because his third-strike sentence is not yet final on appeal and require
remanding his case to the trial court for resentencing. Central to his argument is the case of In re Estrada
(1965) 63 Cal.2d 740 (Estrada). In Estrada
the Supreme Court held that “where the amendatory statute mitigates punishment
and there is no saving clause, . . . the amendment will operate retroactively
so that the lighter punishment is imposed†in all cases in which the judgment
was not yet final when the amendment took effect. (Id.
at p. 748.)
Section
1170.12 does not have an express saving clause.
But even in the absence of an express saving clause, the rule in
by other language “clearly signals its intent to make the amendment
prospective.†(People v. Nasalga (1996) 12 Cal.4th 784, 793.) “ ‘[W]hat is required is that the Legislature
demonstrate its intention with sufficient clarity that a reviewing court can discern
and effectuate it.’ [Citation.]†(
Statutes
enacted into law through the initiative process are construed in the same
manner, and are subject to the same principles as, statutes enacted by the
Legislature. (People v. Elliot (2005) 37 Cal.4th 453, 478.) One of the most important principles is that
statutes dealing with the same subject matter—commonly referred to as statutes “in
pari materiaâ€â€”should be construed together.
(People v. Honig (1996) 48
Cal.App.4th 289, 327.) Application of
this rule is especially appropriate in cases where statutes relating to the
same subject matter were passed at the same time. (Stickel
v. Harris (1987) 196 Cal.App.3d 575, 590.) Section 1170.126, a related statute added by
Proposition 36, defeats the presumption of retroactivity set forth in
serving three strikes sentences when the measure was enacted and establishes a
specific procedure for defendant to follow in this case.
In
particular, section 1170.126 provides for the resentencing of “persons
presently serving an indeterminate term of imprisonment pursuant to paragraph
(2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c)
of Section 1170.12, whose sentence under this act would not have been an indeterminate
life sentence.†(§ 1170.126, subd.
(a).) A person serving a three strikes
sentence for a current conviction that is not a serious or violent felony “may
file a petition for a recall of sentence, within two years after the effective
date of the act that added this section or at a later date upon a showing of
good cause, before the trial court that entered the judgment of conviction in
his or her case, to request resentencing in accordance with†Proposition 36. (§ 1170.126, subd. (b).) An inmate is eligible for resentencing unless
he has prior convictions for certain specified offenses. (§ 1170.126, subd. (e).) If the prisoner is eligible, then the trial
court will resentence the defendant “unless the court, in its discretion,
determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.†(§ 1170.126,
subd. (f).) The factors governing
the exercise of the trial court’s discretion—the prisoner’s criminal history,
record in prison, and any other relevant evidence—are set forth in section
1170.126, subdivision (g).
In
light of this scheme, which provides for limited application of Proposition 36
to prisoners serving three-strikes sentences at the time of its enactment, the
presumption in Estrada does not apply
as to them; it applies only to those people not yet convicted or not yet
sentenced. Those already sentenced and
serving an indeterminate term of imprisonment must petition the trial court for
a recall of sentence regardless of whether or not their judgment is final. Nothing in Penal Code section 1170.126 states
that its reference to “persons presently serving an indeterminate term of
imprisonment . . . whose sentence under this act would not have been an
indeterminate life sentence†is meant to apply only to those serving a term of
imprisonment under a final judgment. (Pen.
Code, § 1170.126, subd. (a).) We may not
insert such words into the statute. (Code
Civ. Proc., § 1858; Adoption of Kelsey S.
(1992) 1 Cal.4th 816, 826-827.)
Our
conclusion that sections 667, subdivision (e)(2) and 1170.12,
subdivision (c)(2) do not apply retroactively is supported by
Cal.App.4th 161 (Yearwood). Yearwood
buttressed its conclusion by referencing the voters’ intent in approving the
Act and by ballot arguments. According
to Yearwood, enhancing public safety
was a key purpose of the Act. A
prospective-only application of the Act supports the Act’s public safety
purpose by reducing the likelihood that prisoners who are currently dangerous
will be released from prison due to the Act.
If the Act were given retroactive application, prisoners in defendant’s
position would be entitled to automatic resentencing without any judicial
review to ensure they do not currently pose an unreasonable risk of danger to
public safety. The time period between
sentencing and finality of judgment can span years, and prisoners can increase
in dangerousness during this interval.
Such a “loophole,†the court reasoned, would be inconsistent with the
public safety purpose of the Act. (
failing to apply the mandatory ameliorative benefits of Proposition 36
retroactively would violate the equal protection clause of the federal Constitution,
noting that the rational relationship test is the appropriate test, and
concluding: “Prospective application of
amended sections 667 and 1170.12 furthers legitimate interests and does not
unfairly discriminate against appellant. A prisoner who was sentenced to an indeterminate
life term before the Act’s effective date may file a section 1170.126 petition
upon finality of the judgment. If
qualified, the prisoner will ordinarily receive the same sentencing reduction
that would have been obtained if he or she had been resentenced under amended
sections 667 and 1170.12. The
discretionary public safety exception to second strike sentencing that is
present in section 1170.126, but not in amended sections 667 and 1170.12, is
rationally related to a legitimate state interest. It increases the likelihood that prisoners
whose sentences are reduced or who are released due to the Act will not pose an
unreasonable risk of danger to the public.†(Yearwood,
supra, 213 Cal.App.4th at pp. 178-179.) We agree with Yearwood and for that reason reject defendant’s argument to the
same effect.
DISPOSITION
The
judgment is affirmed.
RAYE ,
P. J.
We concur:
NICHOLSON , J.
ROBIE , J.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise designated.
