Filed 6/1/18 P. v. Kane CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL DAVID KANE,

Defendant and Appellant.
D072365



(Super. Ct. No. SCN358906)

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Judgment amended in part and otherwise affirmed.

Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael David Kane of first degree felony murder (Pen. Code, § 187, subd. (a)) and robbery (§ 211). As to the robbery, the jury also made a true finding that Kane personally used a deadly or dangerous weapon (a knife). (§ 12022, subd. (b)(1).) The trial court made a true finding that Kane had two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), two prior serious felonies (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and two prior prison terms. (§§ 667.5, subd. (b), 668.) The trial court denied Kane's motion to strike his prior strikes, and it imposed an indeterminate sentence of 75 years to life, and a determinate term of 11 years.
Kane contends (1) the trial court prejudicially erred in giving an incorrect jury instruction for the weapon enhancement associated with the robbery count; (2) the trial court abused its discretion by denying his motion to strike his prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero); (3) the trial court should have stricken, rather than stayed, the sentence on one of the prior prison term enhancements; (4) the trial court should be ordered to correct certain clerical errors in the abstract of judgment.
On the first issue, the People concede the trial court gave an incorrect instruction on the weapon enhancement but contend the error was not prejudicial. We agree with the People that the error was not prejudicial. On the second issue, we conclude that the trial court did not abuse its discretion in denying the Romero motion. On the third and fourth issues, the People concede that the trial court should have stricken, rather than stayed, the prior prison term enhancement and that the clerical errors in the abstract of judgment should be corrected, and we accept those concessions. Accordingly, we order that the judgment be amended to strike rather than stay the prior prison term enhancement and that the abstract of judgment be corrected to address certain clerical errors. In all other respects, we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Kane was inside a tobacco shop when he noticed a frail older man, Kevin Kelley, putting $900 in 20-dollar bills into his pants pocket. After both men exited the store, Kelley walked to a supermarket in the same shopping center, and Kane drove over to the supermarket in his vehicle. Kane confronted Kelley outside the supermarket and demanded that he hand over his money. According to Kelley's statement to police, Kane stated something such as "Give me that cash outta your pocket right now or I'm gonna stab you" or "cut you." Kelley told police he saw something in Kane's hand that "looked like it could have been a knife." Specifically, Kelley stated he saw Kane holding something with a black handle that could have been a folded up pocket knife or switchblade knife. However, Kelley did not see any blade. Kelley believed Kane was trying to hide the knife so no one could see it but, at the same time, Kane wanted Kelley to feel threatened.
When Kelley did not immediately hand over the money, Kane took it out of Kelley's pocket by force, and in the process, he pushed Kelley to the ground. After Kane fled the scene, police arrived, and Kelley was transported to the hospital, where it was determined that he suffered a fractured hip. Kelley underwent a partial hip replacement surgery. While Kelley was recovering from the surgery in a skilled nursing facility, he developed a urinary tract infection due to a catheter that had been inserted during his stay at the facility. Kelley then developed sepsis from the urinary tract infection and died from septic shock 17 days after he was assaulted and robbed by Kane.
Police located Kane by using surveillance video from the shopping center. Two eyewitnesses to the assault and robbery subsequently identified Kane in a photographic line up and in court.
Kane was charged with, and convicted by a jury of, first degree felony murder (§ 187, subd. (a)) and robbery (§ 211), with the further finding for the robbery count that Kane personally used a deadly or dangerous weapon (a knife). (§ 12022, subd. (b)(1).) The information alleged that Kane incurred two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), two prior serious felonies (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and three prior prison terms. (§§ 667.5, subd. (b), 668.) The trial court made a true finding as to all of the criminal history allegations except for one of the prior prison terms.
After denying Kane's Romero motion, the trial court sentenced Kane to an indeterminate sentence of 75 years to life for the murder conviction, and a determinate term of 11 years for the two serious felony priors and one of the prior prison terms. A 25-year-to-life sentence relating to the robbery count and a one-year sentence for the corresponding weapon-use enhancement was stayed pursuant to section 654. The trial court also stayed the sentence on one of the prior prison term enhancements.
II.
DISCUSSION
A. The Trial Court's Instructional Error on the Firearm Enhancement Was Not Prejudicial

We first consider Kane's contention that the trial court prejudicially erred in giving the wrong CALCRIM jury instruction for the allegation pursuant to section 12022, subdivision (b)(1) that he personally used a deadly or dangerous weapon in connection with the robbery count.
The weapon-use enhancement set forth in section 12022, subdivision (b)(1) provides as follows: "A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense." (§ 12022, subd. (b)(1).)
Case law establishes that " '[i]n order to find 'true' a section 12022[, subdivision] (b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1197 (Hajek).) Based on that case law, CALCRIM No. 3145 instructs that for the purposes of section 12022, subdivision (b), "[s]omeone personally uses a deadly [or dangerous] weapon if he or she intentionally [does any of the following]: . . . Displays the weapon in a menacing manner[;] . . . [OR] . . . Hits someone with the weapon." (CALCRIM No. 3145.)
However, the jury was not instructed with CALCRIM No. 3145. Instead, the trial court instructed with CALCRIM No. 3130. That instruction describes the weapon-use enhancement found in section 12022.3, which applies when a defendant is personally armed with a deadly weapon in the commission of certain sex offenses.
Based on CALCRIM No. 3130, the jury was instructed that the factual issue presented was whether the People had proven "that the defendant was personally armed with a deadly weapon in the commission of" the robbery. The jury was instructed: "A person is armed with a deadly weapon when that person: [¶] 1. Carries a deadly weapon or has a deadly weapon available for use in either offense or defense in connection with the crime charged; [¶] AND [¶] 2. Knows that he or she is carrying the deadly weapon or has it available."
Kane contends, and the People concede, that the trial court erred in giving the CALCRIM No. 3130 because that instruction did not properly set forth the findings that the jury must make with respect to the weapon-use enhancement found in section 12022, subdivision (b)(1). Specifically, the jury was not instructed that it was required to find that Kane displayed the weapon in a menacing manner or struck someone with the weapon, as case law requires for the enhancement set forth in section 12022, subdivision (b)(1). (Hajek, supra, 58 Cal.4th at p. 1197.) Instead, the jury was instructed that it was sufficient for it to find that Kane knowingly carried or had a deadly weapon available for use.
Although the parties agree that the trial court erred, they disagree as to whether the error was prejudicial. As the People acknowledge, because the trial court failed to instruct on an element of a sentence enhancement that increased the penalty for the underlying crime, Kane has established a violation of his constitutional rights to due process and a jury trial. (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.) Accordingly, as the parties agree, "[s]uch error is reversible . . . unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (Ibid.)
Under the above standard, we may find the instructional error to be harmless if we "conclude[] beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error." (Neder v. United States (1999) 527 U.S. 1, 17 (Neder).) When an instructional error omits a necessary element, "we may affirm despite the error if the jury that rendered the verdict at issue could not rationally have found the omitted element unproven; the error is harmless, that is, if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted element was not." (People v. Sakarias (2000) 22 Cal.4th 596, 625.) We inquire "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is 'no,' " we will hold the error to be harmless. (Neder, supra, 527 U.S. at p. 19.) We must " 'conduct a thorough examination of the record. If, at the end of that examination, [we] cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—[we] should not find the error harmless.' " (People v. Mil (2012) 53 Cal.4th 400, 417.)
As we have explained, the jury should have been instructed that it was required to find that Kane "[d]isplay[ed] the weapon in a menacing manner" or "[h]it[] someone with the weapon." (CALCRIM No. 3145.) Here, because Kane indisputably did not hit anyone with the knife, a properly instructed jury would have focused on the question of whether Kane displayed the knife in a menacing manner. Therefore, the issue in our harmless error analysis is "whether the record contains evidence that could rationally lead to a contrary finding" on the question of whether Kane displayed the knife in a menacing manner. (Neder, supra, 527 U.S. at p. 19.)
Case law defines what it means to display a weapon in a menacing manner. In the analogous weapon-use enhancement for personally using a firearm in the commission of a felony found in section 12022.5, subdivision (a) "a firearm is displayed when, by sensory perception, the victim is made aware of its presence. Once displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a use of that firearm proscribed by" the weapon-use enhancement. (People v. Jacobs (1987) 193 Cal.App.3d 375, 381.) The "display of the weapon, coupled with a threat to use it which produces fear of harm in the victim" is sufficient to support a finding that a weapon has been displayed in a menacing manner. (Ibid.) "[W]hen a defendant deliberately shows a [weapon], or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find" the defendant personally used the weapon in the commission of the crime. (People v. Wilson (2008) 44 Cal.4th 758, 807 [interpreting § 12022.5, subd. (a)].)
Here, as we have described, Kelley told police that Kane threatened to "cut" him or "stab" him, and Kelley saw Kane holding something with a black handle, which he believed to be a switchblade knife or pocket knife that was still folded. Kelley stated he believed Kane was attempting to threaten him by showing him a knife, while still keeping it hidden from other people in the area. Although Kelley indicated at one point that he was not certain that the item in Kane's hand was a knife, the jury necessarily found that the item that Kelley saw was, in fact, a knife, as it made a true finding, based on the instruction it was given, that Kane knowingly "[c]arrie[d] a deadly weapon or ha[d] a deadly weapon available for use." Thus, the record establishes (1) Kane made Kelley aware, by sensory perception, of the presence of something in his hand, which looked like a knife to Kelley; (2) the jury necessarily found that the item Kane showed to Kelley was a knife; and (3) Kane threatened to stab or cut Kelley. Based on those facts, had the jury been properly instructed, it could not reasonably have come to any other conclusion than that Kane displayed a knife to Kelley, and that due to the threat to stab or cut Kelley, the display was done in a menacing manner.
Accordingly, we conclude that the instructional error was harmless beyond a reasonable doubt because the record does not "contain[] evidence that could rationally lead to a contrary finding with respect to the omitted element." (Neder, supra, 527 U.S. at p. 19.)
B. The Trial Court Did Not Abuse Its Discretion by Denying Kane's Romero Motion

We next consider Kane's challenge to the trial court's denial of his motion to strike his prior strikes.
A trial court may strike prior felony conviction allegations in cases prosecuted under the Three Strikes law when doing so is "in furtherance of justice." (§ 1385, subd. (a); see Romero, supra, 13 Cal.4th at pp. 529-530.) "[T]he law creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) In deciding whether to strike prior conviction allegations, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review a trial court's refusal to strike prior conviction allegations for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) Among other things, "an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss." (Id. at p. 378.) "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
Kane filed a motion requesting that the trial court strike his two prior strikes, which were burglary convictions from 2009 and 2011. Kane argued that the strikes should be stricken because a sentence of 75 years to life for the murder conviction plus an 11-year determinate sentence was "overly harsh" due to his "lack of intent to inflict injury." At the hearing on the motion, defense counsel argued a sentence of "86-years-to-life, . . . should be reserved for someone who's a violent, heinous serial murder[er]." Defense counsel also pointed out that the court still had "adequate sentencing parameters by striking the strikes" because "he's still looking at 35-to-life." The prosecutor opposed the motion, stating that the court should not "use its discretion to strike any of the defendant's prior strikes." (Italics added.)
The court denied the motion, giving a lengthy explanation of its reasoning. The court stated, "I've given this case a lot of thought and have reviewed the Romero factors. And the Court recognizes that it does have discretion under [section] 1385 to strike the strikes in going through the factors." The trial court, however, believed that the majority of the relevant factors did not weigh in Kane's favor, including the serious nature of the current offense, that the prior convictions were not remote in time, that Kane had no documented history of mental illness, that Kane's crimes were escalating in nature, and that the victim was extremely vulnerable. According to the trial court, the only factor that weighed in Kane's favor was that the court "had adequate sentencing parameters without imposing a three strikes law" sentence, in that Kane would still receive an indeterminate sentence of 25 years to life and an 11-year determinate sentence if both strikes were stricken. The trial court "balance[ed] that one factor against the other factors" and concluded that "the one factor regarding whether adequate sentencing parameters are available without imposing a three strikes law [sentence] is outweighed by the overwhelming factors that the Court mentioned." The court stated that it was a "close call" because adequate sentencing parameters were available, but "I just can't get away from the overwhelming weight of the other balancing factors that weigh in favor of not striking the strike." The court concluded, "the request to strike the strikes or even one of the strikes is denied." (Italics added.)
Relying on the principle that "an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss" (Carmony, supra, 33 Cal.4th at p. 378), Kane contends that the trial court abused its discretion because it ruled on the motion to strike his prior strikes "without considering the option of striking just one of [Kane's] prior strike convictions." Although Kane acknowledges the trial court made the statement that "the request to strike the strikes or even one of the strikes is denied" (italics added), he nevertheless contends the trial court may not have considered that it had the discretion to strike only one of the strikes. Specifically, Kane argues that because the trial court specifically mentioned only the sentence of 25 years to life plus an 11-year determinate term, it may not have considered whether it could strike only one of the strikes, resulting in a sentence of 50 years to life plus an 11-year determinate term. (See § 667, subd. (e)(1) [a defendant with one prior strike shall be sentenced to twice the term otherwise provided].) We reject the argument.
The trial court's comments at the hearing plainly establish that the trial court understood and considered its discretion to strike only one of Kane's two strikes, as it stated that "the request to strike the strikes or even one of the strikes is denied." (Italics added.) The trial court's statement that adequate sentencing parameters existed if it decided to strike both the strikes does not suggest that the trial court did not consider whether to strike only one of the strikes. There was no need for the trial court to explain that the higher sentence that would be applied if it struck only one of the strikes would also be adequate, as it had already stated that a lesser sentence of 25 years to life plus an 11-year determinate term provided adequate sentencing parameters.
In sum, Kane has not established that the trial court abused its discretion. The trial court applied the proper legal criteria, and it understood and exercised its discretion to reasonably conclude that Kane did not fall outside of the spirit of the Three Strikes law.
C. The Trial Court Should Have Stricken Rather Than Stayed the Sentence for the Prior Prison Term Enhancement

The trial court made a true finding that Kane incurred two prison priors as alleged under section 667.5, subdivision (b). At sentencing, based on the recommendation in the probation officer's report, which the trial court adopted, the trial court imposed a one-year enhancement for one of the prison priors, but it imposed and stayed the one-year enhancement for the second prison prior, as the same conviction was also a serious felony prior (§ 667, subd. (a)(1)) for which a five-year term was imposed. Consistent with this pronouncement, the abstract of judgment and the court's minute order also state that the one-year sentence on one of the prior prison term enhancements was stayed.
Kane argues, and the People agree, that the trial court should have stricken rather than stayed the sentence on the prior prison term enhancement. As the People acknowledge, this court held in People v. Perez (2011) 195 Cal.App.4th 801, 805 that a trial court should strike rather than stay an enhancement under section 667.5, subdivision (b). We accordingly will order the trial court to amend the judgment to strike the one-year prior prison term enhancement.
D. Clerical Errors in the Abstract of Judgment
Kane points out two clerical errors in the abstract of judgment which he asks that we order the trial court to correct. The People concur that the errors should be corrected. "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases [will order] correction of abstracts of judgment that [do] not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
First, the trial court sentenced Kane to a term of 25 years to life for the robbery count but stayed that sentence pursuant to section 654. On Line 1 of the abstract of judgment, it shows that the sentence on the robbery count is stayed. However, on Line 6.b a box is checked showing a term of 25 years to life for the robbery count. Kane contends that the box on Line 6.b showing a 25-year-to-life term should not be checked, as it gives the impression that the total term to be served is 100 years to life and that the sentence for the robbery count was not stayed. The People agree the abstract of judgment contains an error. We accordingly order that the trial court correct the abstract of judgment to delete the information in Line 6.b showing a 25-year-to-life term to be served for the robbery count.
Second, at sentencing the court ordered "restitution per [section] 1202.4[, subdivision] (f) to the Kelley family in the amount to be determined by the Court. And the restitution, pursuant to the victims' compensation program, will be ordered in the amount of $1,196." However, the abstract of judgment does not state that any restitution should be made to the Kelley family. Instead, on a single line, the abstract of judgment indicates restitution both in the amount of $1,196 and in an "[a]mount to be determined" to the restitution fund. Kane contends that the error should be corrected to show restitution in an amount to be determined to the Kelley family, and separately, restitution in the amount of $1,196 to the restitution fund. The People agree that the correction should be made. We therefore order the trial court to amend the abstract of judgment to indicate the following restitution, on two separate lines: (1) $1,196 to the restitution fund; and (2) an amount to be determined to the Kelley family.
DISPOSITION
The trial court is ordered to amend the judgment to reflect that the one-year sentence for the prior prison term enhancement is stricken rather than stayed. The trial court is further ordered to correct the abstract of judgment as follows: (1) delete the reference to a 25-year-to-life sentence for the robbery count in Line 6.b; and (2) state in the section describing the restitution orders that restitution is ordered in the amount of $1,196 to the restitution fund, and separately, in an amount to be determined to the Kelley family. In all other respects, the judgment is affirmed.


IRION, J.

WE CONCUR:




NARES, Acting P. J.




AARON, J.