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finding that “the vice of bootstrapping the same conduct to increase a defendant's punishment under different statutes” was not present in that case
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Nos. D056444, D058846.
April 7, 2011. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of Discussion parts II. and III.
Superior Court of San Diego County, No. SCE283062, Louis R. Hanoian, Judge.
John O. Lanahan for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
— Brandishing a hammer is a misdemeanor offense (Pen. Code, § 417, subd. (a)); however, the California hate crimes statute (Pen. Code, § 422.7) elevates a crime that would otherwise be punishable as a misdemeanor to a felony under certain circumstances. (Undesignated statutory references are to the Penal Code.) In the published portion of this opinion, we conclude that the trial court did not err in finding a prior conviction of brandishing a hammer, with a hate crime enhancement, qualified as a serious felony as defined by section 1192.7, subdivision (c)(23) (section 1192.7(c)(23)) because the conduct that made the prior conviction a felony differed from the conduct that made the prior conviction a serious felony.
In the unpublished portion of this opinion, we reject defendant's assertion that the trial court erred in giving the revised version of CALCRIM No. 220 regarding reasonable doubt, and summarily deny defendant's petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
We omit the facts underlying William Morgan's convictions as they are not relevant to resolving the issues that he raised on appeal, or in the petition for habeas corpus.
In August 2000, William Morgan pleaded guilty to brandishing a hammer (§ 417, subd. (a)(1)) with a hate crime enhancement allegation (§ 422.7, subd. (a)). At the time of his plea, Morgan understood that the conviction could be used to increase his punishment for future offenses. Specifically, Morgan entered the plea based on the assumption that his conviction would be a "serious/violent felony."
In 2008, William Morgan cut the victim's hand with a knife during an argument. A jury found him guilty of assault with a deadly weapon, and found true the allegation that he personally used a deadly weapon. It also found him guilty of failing to appear, and found true the allegation that he committed the crime while released on bail. In a bifurcated proceeding, the trial court found true the allegation that Morgan had suffered a prior conviction that qualified as a serious felony, and a strike. Based on its findings, the trial court added a five-year sentence enhancement and doubled the base terms for the assault and failure to appear convictions. It sentenced Morgan to a total term of 12 years four months in prison.
Morgan appeals the judgment, and has filed a separate petition for writ of habeas corpus. We join Morgan's petition for writ of habeas corpus with his direct appeal and consider the issues in this opinion. ( People v. Pope (1979) 23 Cal.3d 412, 426, fn. 17 [ 152 Cal.Rptr. 732, 590 P.2d 859].)
DISCUSSION I. The Prior Conviction
A. Facts
Prior to trial in the instant case, Morgan moved to dismiss the allegations that his prior conviction constituted a prior serious felony. He asserted that because his prior conviction was not a "serious felony," it could not be used to enhance his sentence. The prosecution disagreed, arguing that the prior conviction met the definition of a prior serious felony under section 1192.7(c)(23), because it fell within the language of that provision defining a serious felony as "any felony in which the defendant personally used a dangerous or deadly weapon." Based on the preliminary hearing testimony which was used as the factual basis for Morgan's guilty plea, the prosecution argued that Morgan had "personally used a dangerous or deadly weapon" during the commission of that felony within the meaning of section 1192.7(c)(23). Thereafter, Morgan filed a supplemental motion arguing that as part of his plea in 2000, he did not specifically plead guilty to or admit a violation of section 1192.7(c)(23).
The trial court denied Morgan's motion to dismiss the prior serious felony and prior strike allegations. Before sentencing, the trial court affirmed its finding that Morgan's prior conviction qualified as a prior serious felony and as a strike based upon the plea and the preliminary hearing transcript which revealed that the prior conviction constituted a felony that Morgan committed while armed with a deadly or dangerous weapon.
B. Analysis
Morgan asserts the trial court erred in finding that his prior conviction for brandishing a hammer, which was punished as a felony under the hate crime statute, qualified as a prior serious felony offense. He argues that a misdemeanor brandishing offense involving the personal use of a weapon that is elevated to a felony under the hate crime statute, does not qualify as a prior serious felony because section 1192.7(c)(23) does not reference this sentencing enhancement. He cites People v. Montes (2003) 31 Cal.4th 350 [ 2 Cal.Rptr.3d 621, 73 P.3d 489] ( Montes) and People v. Briceno (2004) 34 Cal.4th 451 [ 20 Cal.Rptr.3d 418, 99 P.3d 1007] ( Briceno) to support his argument. We disagree.
Brandishing a hammer is a misdemeanor offense. (§ 417, subd. (a)(1).) However, "[s]ection 422.7 elevates a crime that would otherwise be punishable as a misdemeanor to a felony if the crime causes physical injury and is committed `for the purpose of intimidating or interfering with [another] person's free exercise or enjoyment of any right . . . and because of the . . . person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation.`" ( People v. Wallace (2003) 109 Cal.App.4th 1699, 1701 [ 1 Cal.Rptr.3d 324] ( Wallace).) "[S]ection 422.7 is not a[] [sentence] `enhancement,' which is defined as `an additional term of imprisonment added to the base term.' [Citation.]" ( Id. at p. 1702.) Rather, section 422.7 is a penalty-enhancement provision ( Wisconsin v. Mitchell (1993) 508 U.S. 476, 483 [ 124 L.Ed.2d 436, 113 S.Ct. 2194]; In re M.S. (1995) 10 Cal.4th 698, 725 [ 42 Cal.Rptr.2d 355, 896 P2d 1365]), that does not identify or establish a substantive crime ( People v. Vasilyan (2009) 174 Cal.App.4th 443, 448 [ 94 Cal.Rptr.3d 260]). Stated differently, the section 422.7 penalty is separate from the underlying offense, and focuses on how the defendant committed the crime or the criminal history of the defendant. ( Wallace, supra, 109 Cal.App.4th at p. 1702.)
Thus, contrary to Morgan's assertion, application of the hate crime statute to a substantive crime is not a sentencing enhancement; rather, it is an alternative penalty provision that elevates otherwise misdemeanor conduct to felony conduct because the defendant committed the substantive crime for the purpose of interfering with the victim's civil rights. (See generally Wallace, supra, 109 Cal.App.4th at pp. 1701-1703.)
Morgan's reliance on Montes and Briceno is misplaced. These cases addressed the interaction between gang-related provisions enacted by Proposition 21 (the Gang Violence and Juvenile Crime Prevention Act of 1998) and section 186.22, which is part of the California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq.). ( Briceno, supra, 34 Cal.4th at p. 459.) Proposition 21 "added several new felony violations to the list of serious felonies in section 1192.7, subdivision (c), including section 1192.7[, subdivision] (c)(28), which makes `any felony offense, which would also constitute a felony violation of Section 186.22,' a serious felony." ( Briceno, at p. 458.)
In turn, section 186.22 is a complex statute that makes active participation in a criminal street gang a crime (§ 186.22, subd. (a)), and among other things, lists various sentencing enhancements (§ 186.22, subd. (b)(1), (2)), and alternative penalty provisions (§ 186.22, subds. (b)(4), (5), (d)). ( Briceno, supra, 34 Cal.4th at p. 460, fn. 7.) In Montes and Briceno, our high court was concerned about the interplay of these statutes. (See generally Briceno, at p. 459.) Of particular concern in Briceno was the potential for "bootstrapping" various statutory provisions to increase a defendant's punishment for the same conduct. ( Id. at p. 465 ["[W]hile it is proper to define any felony committed for the benefit of a criminal street gang as a serious felony under section 1192.7(c)(28), it is improper to use the same gang-related conduct again to obtain an additional five-year sentence under section 186.22(b)(1)(B)."].)
Our Supreme Court subsequently addressed the interaction of various provisions of section 186.22, with other statutes designed to increase a defendant's punishment. ( People v. Brookfield (2009) 47 Cal.4th 583 [ 98 Cal.Rptr.3d 535, 213 P.3d 988] ( Brookfield); People v. Jones (2009) 47 Cal.4th 566 [ 98 Cal.Rptr.3d 546, 213 P.3d 997] ( Jones); People v Rodriguez (2009) 47 Cal.4th 501 [ 98 Cal.Rptr.3d 108, 213 P.3d 647] ( Rodriguez).) Briefly, in Rodriguez, our high court held that the trial court should not have imposed sentence enhancements both for the defendant's personal firearm use (§ 12022.5, subd. (a)) and for committing a violent felony to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)), because both sentence enhancements relied on the defendant's firearm use and section 1170.1, subdivision (f) required that only the greatest of the enhancements could be imposed. ( Rodriguez, supra, 47 Cal.4th at pp. 508-509.)
In Jones and Brookfield, our high court focused on the actions of the defendants to determine whether the trial court properly imposed a sentence enhancement (§ 12022.53) in conjunction with an alternate penalty provision (§ 186.22, subd. (b)(4)). In Jones, the defendant was convicted for shooting at an inhabited dwelling (§ 246), and faced a life sentence because he had committed the crime to benefit a criminal street gang (§ 186.22, subd. (b)(4)). The Jones court addressed whether the defendant had committed a felony punishable by life imprisonment (§ 12022.53, subd. (a)(17)), thereby triggering an additional 20-year firearm enhancement under section 12022.53, subdivision (c). ( Jones, supra, 47 Cal.4th at pp. 570-572.) It noted that section 186.22, subdivision (b)(4) constituted an alternative penalty provision, which made the felony of shooting at an inhabited dwelling subject to life imprisonment. ( Jones, supra, 47 Cal.4th at p. 578.) In committing the shooting the defendant personally and intentionally discharged a firearm in the commission of that felony (§ 12022.53, subd. (c)); thus, imposition of the 20-year sentence enhancement of section 12022.53, subdivision (c) was proper. ( Jones, supra, 47 Cal.4th at p. 578.) The Jones court distinguished Briceno, noting that application of the alternative penalty provision of section 186.22, subdivision (b)(4), in conjunction with the sentence enhancement of section 12022.53, subdivision (c) for personal use of a firearm did not amount to impermissible bootstrapping because the later statute came into play, not because the defendant committed a gang-related offense, but because he committed a crime sufficiently heinous to warrant life imprisonment. ( Jones, supra, 47 Cal.4th at pp. 574-575.)
In Brookfield, the "defendant was convicted of a gang-related crime in the commission of which he did not personally discharge a firearm, but a companion did." ( Brookfield, supra, Al Cal.4th at p. 586.) Section 12022.53, subdivisions (d) and (e)(1) authorizes imposition of the 25-year-to-life sentence on a nonshooter principal in a gang-related shooting. But section 12022.53, subdivision (e)(2) provides: "An enhancement for participation in a criminal street gang . . . shall not be imposed on a person in addition to an enhancement imposed pursuant to [the section 12022.53, subdivisions (d) and (e)(1) enhancement], unless the person personally used or personally discharged a firearm in the commission of the offense." The use of the term "enhancement" in section 12022.53, subdivision (e)(2) refers broadly to the sentence enhancement provisions in section 186.22 and to its alternative penalty provisions, including the 15-year minimum parole eligibility provision. ( Brookfield, supra, Al Cal.4th at p. 593.) Consequently, "when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an `enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53." ( Id. at p. 590.)
In this case, the trial court similarly focused on Morgan's actions. Here, Morgan's act of brandishing a hammer for the purpose of interfering with the victim's civil rights transformed a misdemeanor brandishing offense into a felony. (§ 422.7.) Morgan pleaded guilty to this felony, and acknowledged his assumption that the felony would be a "serious/violent felony" that could be used to increase his punishment for future offenses. (3) For purposes of the prior conviction statute, a conviction occurs at the time of entry of the guilty plea. (§ 667, subd. (d)(1); People v. Castello (1998) 65 Cal.App.4th 1242, 1253 [ 77 Cal.Rptr.2d 314].) Thus, the record of conviction established that the trial court properly found Morgan's prior conviction to be a felony.
The trial court then examined the prior record of conviction to determine whether the prior felony conviction involved the personal use of a dangerous or deadly weapon, thus satisfying the definition of a prior serious felony under section 1192.7(c)(23). Specifically, the trial court found that the preliminary hearing transcript for Morgan's prior conviction revealed that he used a deadly or dangerous weapon when he committed the felony. We agree.
In 2000, Morgan pleaded guilty to brandishing a hammer, thus establishing that "in the presence of any other person, [he] [drew or exhibited] any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or . . . unlawfully use[d] a deadly weapon other than a firearm in any fight or quarrel. . . ."(§ 417, subd. (a)(1).) The preliminary hearing transcript for Morgan's prior conviction established that he stood about nine feet away from the victim, held a hammer in one hand while hitting it with his other hand, and caused the victim to fear that Morgan would hit him. ( People v. Wood (2000) 83 Cal.App.4th 862, 865 [ 100 Cal.Rptr.2d 115] [court may examine transcript of preliminary hearing to determine whether felony was serious in cases where prior conviction arises from guilty plea].) The "use" of a weapon may include displaying or brandishing the weapon. ( People v. Arzate (2003) 114 Cal.App.4th 390, 400 [ 7 Cal.Rptr.3d 680].) Thus, the trial court properly treated Morgan's prior conviction as a prior strike and prior serious felony.
To escape this result, Morgan relies on People v. Ulloa (2009) 175 Cal.App.4th 405 [ 95 Cal.Rptr.3d 905] ( Ulloa). Ulloa involved a defendant with a prior conviction for an offense that had been punished under the alternate penalty provision of section 186.22, subdivision (d) (section 186.22(d)), which gives the court discretion to treat as a felony a misdemeanor committed for the benefit of a criminal street gang. When sentencing for the current offenses, the trial court imposed a three-strike sentence and an enhancement for a prior serious felony. ( Ulloa, at pp. 408-409.) The appellate court reversed, concluding that a misdemeanor treated as a felony under section 186.22(d) is not a serious felony under section 1192.7, subdivision (c)(28) (section 1192.7(c)(28)). ( Ulloa, at p. 413.) Critically, section 1192.7(c)(28) provides that a serious felony includes "any felony offense, which would also constitute a felony violation of Section 186.22." Thus, the concern in Ulloa was using the defendant's gang conduct to elevate a misdemeanor to a felony under section 186.22(d), and bootstrapping the same gang conduct into a serious felony under section 1192.7(c)(28). ( Ulloa, at pp. 412-413, citing Briceno, supra, 34 Cal.4th at p. 462 ["[T]he section 1192.7(c)(28) phrase, `felony violation of Section 186.22,' simply distinguishes crimes that are felonies regardless of section 186.22 from crimes that are initially misdemeanors, but become felonies by virtue of section 186.22."].)
Here, however, the conduct that made the prior conviction a felony (interfering with the victim's civil rights under § 422.7), is different from the conduct making that felony a serious felony (personally using a dangerous or deadly weapon under § 1192.7(c)(23)). Thus, the vice of bootstrapping the same conduct to increase a defendant's punishment under different statutes that was present in Ulloa, and identified by our high court in Briceno and Jones, does not exist. (See Briceno, supra, 34 Cal.4th at p. 465; Jones, supra, 41 Cal.4th at pp. 574-575.)
II. Reasonable Doubt Instruction
The trial court instructed the jury with the August 2006 version of CALCRIM No. 220, which provides in relevant part that: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." The trial court also instructed the jury on the two counts it needed to decide. Each instruction told the jury that the prosecution needed to prove certain enumerated factors before it could find Morgan guilty of the charged crime. (CALCRIM Nos. 875 [assault with a deadly weapon], 2240 [failure to appear].) Finally, the court instructed the jury on the various allegations. These instructions told the jury that the prosecution had the burden of proving "each allegation beyond a reasonable doubt." (CALCRIM Nos. 3145 [personally used assault deadly weapon], 3250 [out on bail allegation].)
Morgan notes that the version of CALCRIM No. 220 given by the trial court omits language from the previous version of the instruction that the People must prove "each element" of the crime beyond a reasonable doubt. He contends the trial court prejudicially erred by giving the revised version of CALCRIM No. 220 because the instruction did not inform the jury that the prosecution must prove every element of the crime beyond a reasonable doubt in order to convict him of the charged crime. Morgan claims the instructions on the sentencing enhancements exacerbated the error, and that the jury "could have applied a gestalt approach to the concept of reasonable doubt, and decided that because most elements had been proven beyond a reasonable doubt and others by a lesser standard, the totality was proof beyond a reasonable doubt. The jury could therefore return a verdict of guilty without a finding of beyond a reasonable doubt as to every a [sic] material element."
As a preliminary matter, we reject the Attorney General's contention that Morgan forfeited his claim of instructional error by failing to object to CALCRIM No. 220 or request a clarifying instruction. Despite the lack of an objection, the issue regarding CALCRIM No. 220 has not been forfeited, as an "appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§§ 1259, 1469; see also People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 ["Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim, at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was."].)
We and several other appellate courts have examined and rejected similar arguments. (See, e.g., People v. Riley (2010) 185 Cal.App.4th 754, 767-770; People v. Henning (2009) 178 Cal.App.4th 388, 406; People v. Wyatt (2008) 165 Cal.App.4th 1592, 1601; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088-1089.) We agree with the reasoning in these cases that, when considered as a whole, the instructions adequately informed the jury of the applicable law.
CALCRIM No. 220 generally instructed the jury that "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." The court separately instructed the jury on the allegations and the various elements for each crime. These instructions emphasized the beyond a reasonable doubt requirement. As a whole, the instructions correctly informed the jury that the prosecutor was obliged to prove each factor or element of every crime beyond a reasonable doubt. ( Henning, supra, 178 Cal.App.4th at p. 406; accord, Ramos, supra, 163 Cal.App.4th at pp. 1088-1089.) Nothing in the instructions regarding the crimes or the allegations lessened the prosecution's burden of proof. In any event, during closing argument the prosecutor stressed the requirement that he prove all elements of the charged crimes beyond a reasonable doubt. Defense counsel then talked about the reasonable doubt requirement. Under these circumstances, we can detect no possibility the jury misinterpreted or misapplied the relevant standard.
III. Habeas Petition
See footnote, ante, page 79.
In his petition for writ of habeas corpus, Morgan claims the trial court imposed an illegal sentence when it concluded that his prior conviction constituted a prior serious felony because "personal use" is not an element of brandishing, and the preliminary hearing transcript did not show "personal use." Morgan also asserts that trial counsel was unprepared at the sentencing hearing, and had counsel been prepared, he would have obtained a lower sentence. To support this assertion, Morgan cites to defense counsel's request at the start of the sentencing hearing that, although the court had already ruled that Morgan's prior conviction constituted a prior strike and a prior serious felony, that the court should delay sentencing because he was in the process of researching a possible motion for reconsideration. The trial court denied the request to delay sentencing to file a motion for reconsideration, stating that "I don't intend to change the ruling of the court with regard to the status of that particular case. It was pretty thoroughly considered and argued at the time that the court originally made its decision. If that decision, of course, is wrong, that is something that counsel on appeal will be able to point out to the Court of Appeal, and it will get reversed."
As we discussed, the trial court properly treated the prior conviction as a prior strike and prior serious felony. (Part I, ante.) Thus, the trial court did not impose an illegal sentence. Additionally, assuming without deciding, that defense counsel's conduct could be viewed as deficient, Morgan has not demonstrated a reasonable probability the trial court would have imposed a lesser sentence had his counsel filed a motion for reconsideration prior to the sentencing hearing. ( People v. Ledesma (1987) 43 Cal.3d 171, 214-218 [To establish ineffective assistance of counsel a defendant must show, by a preponderance of the evidence, that counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different.].) Accordingly, Morgan is not entitled to habeas relief.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
Nares, Acting P. J., and McDonald, J., concurred.