Opinion
B292607
11-27-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHN JASON THOMPSON, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA071760) APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed and remanded with directions. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant John Jason Thompson of one count of possession of a weapon in a penal institution in violation of Penal Code section 4502, subdivision (a). Thompson admitted that he had suffered three strike convictions under the "Three Strikes" law (§§ 667, subd. (b)-(i), 1170.12), as well as two prison priors. (See § 667.5, subd. (b).) At the time of his conviction, Thompson was already serving a six-year sentence for unauthorized possession of controlled substances in prison. (§ 4573.6, subd. (a).) Because Thompson committed both the prior offense and the new offense while in prison, the trial court imposed a new aggregate sentence for the existing and new convictions together. (See § 1170.1, subd. (c); People v. Venegas (1994) 25 Cal.App.4th 1731, 1742-1743 (Venegas).) The court elected to treat Thompson's six-year sentence for his prior conviction of possession of controlled substances as the principal term. For the conviction of possession of a weapon, the trial court imposed a consecutive subordinate sentence of one-third the middle term, or one year, doubled to two years because of the prior strike offenses, plus one year for each of two prison priors. (See §§ 1170.1, subds. (a) & (c), 667.5, subd. (b).) Thus, Thompson's new aggregate sentence was 10 years, an increase of four years above his existing sentence.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Thompson contends that the trial court violated his federal and state constitutional right to due process by instructing the jury that the broomstick pieces he was accused of possessing were "weapon[s] of the kind commonly known as a . . . billy" (§ 4502, subd. (a)), thereby relieving the prosecution of its burden to prove one of the elements of the offense. He also argues that his trial attorney rendered ineffective assistance by failing to object to the instruction. Finally, Thompson contends that he is entitled to relief in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill No. 136), which becomes effective on January 1, 2020 and which makes one-year prison priors under section 667.5, subdivision (b) inapplicable to Thompson's offense. We agree with Thompson with respect to Senate Bill No. 136 and remand the case for resentencing. In all other respects, we affirm on the ground that any error in the instructions was harmless.
FACTS AND PROCEEDINGS BELOW
An information charged Thompson with two counts of possession of a weapon in a penal institution. Count 1 was based on an incident that occurred on August 8, 2016, and count 2, on a separate incident March 27, 2017. Because the jury acquitted Thompson on count 1, and the facts of that incident are not relevant to the issues raised in this appeal, we limit our factual discussion to the events pertaining to count 2.
On the morning of March 27, 2017, Aaron Altamirano, a corrections officer at the Los Angeles County California State Prison was standing outside the prison dining hall conducting random pat-down searches of inmates. As Thompson exited the dining room, Altamirano instructed him to stand in front of Altamirano and submit to a search. Thompson responded, "Fuck you. You're not searching me" and continued walking. When Thompson ignored a second instruction to stop, Altamirano and his partner, Fred Nichols, approached him. Nichols told Thompson to turn around and place his hands behind his back. Thompson complied, and Nichols began to handcuff him.
Altamirano heard Nichols shout, "Weapon," at which point the two corrections officers forced Thompson to the ground. Thompson attempted to grab an object inside his left sleeve, and Altamirano held Thompson's right arm to prevent him from doing so. Altamirano felt a hard object inside Thompson's right sleeve and suspected it was a weapon. The two officers removed a wooden stick from inside each of Thompson's sleeves, and Nichols cuffed Thompson's hands behind his back.
Altamirano searched Thompson's cell and found a third wooden stick that matched the first two. He determined that the three sticks were pieces of a single wooden broom of the kind inmates use to clean their cells. Prisoners are not allowed to keep brooms in their cells except when cleaning. The broom pieces were heavy enough to be used as a club, and had points sharp enough to be used for stabbing.
Thompson testified in his own defense. He admitted that he broke a broom and carried the broken sticks under his forearms, but he denied they were sharpened. He also admitted that the sticks could be used as weapons and that he knew he was not allowed to have them in prison. He claimed that he was under the influence of crystal meth and marijuana, and that he carried the sticks with him because he did not want "[t]he police" to come into his cell and take them.
DISCUSSION
A. Jury Instruction on the Definition of Billy
In this case, the trial court read an incorrect instruction to the jury at the beginning of the case, recognized its error, and read a correct version of the instruction to the jury just before deliberations began. Thompson contends that the court violated his right to due process by including a written copy of the incorrect instruction to the jury for use during deliberations. We hold that any error was harmless beyond a reasonable doubt.
The prosecution accused Thompson of violating section 4502, subdivision (a) by possessing "weapon[s] of the kind commonly known as a . . . billy." (§ 4502, subd. (a).) In its oral instructions at the beginning of the two-day trial, the court told the jury that broomstick pieces fit the statutory definition, informing jurors that "[b]roomstick handles are instruments or weapons of the kind commonly known as a billy." The trial proceeded with opening statements and the direct examination of the first witness for the prosecution. Before testimony resumed the following morning, the court held a hearing regarding jury instructions. Thompson's attorney objected to the instruction defining broomstick handles as a type of billy. He argued that the jury should be allowed to decide whether possession of broomstick pieces was prohibited by the statute. With the agreement of both parties, the court altered the instruction accordingly. Just before closing arguments on the second day of the trial, the court gave the jury the oral instruction that the parties agreed to, that "[b]roomstick handles may be instruments or weapons of the kind commonly known as a billy. A billy is defined as a short stick or club or bludgeon." (Italics added.) The written jury instructions that appear in the record on appeal include the original version of the instruction among instructions pertaining to the beginning of the trial, and the second version among instructions read at the end of the trial.
We agree with Thompson that the original version of the instruction misstated the law. The trial court should not instruct the jury that an object fits within the statutory definition of a prohibited weapon unless that question "may be resolved as a matter of law." (People v. Mayberry (2008) 160 Cal.App.4th 165, 169, fn. 5.) In all other instances, the prosecution is required to prove that the object is prohibited, as with any other element of an offense. (See People v. Hayes (2009) 171 Cal.App.4th 549, 560 [to convict defendant of possession of a sharp instrument, the prosecution was required to prove that the item was in fact sharp].) The statutory definition of a weapon of the type commonly known as a billy "is purposely broad." (People v. Canales (1936) 12 Cal.App.2d 215, 217.) In barring the possession of a general type of weapon rather than a single specific design, the Legislature aimed "to outlaw instruments which are ordinarily used for criminal and unlawful purposes." (Ibid.) Courts have thus interpreted the statute as forbidding the possession of many different kinds of sticks or bludgeons, not merely billy clubs or batons of the type issued to police or correctional officers. In People v. Davis (2013) 214 Cal.App.4th 1322, 1330, the court rejected the defendant's argument that a billy must be a short or small object. Instead, it suggested that a range of clubs or bludgeons could be within the statute's prohibition. (See id. at pp. 1327-1330.) In People v. Grubb (1965) 63 Cal.2d 614, our Supreme Court held that a person could possess an object such as a table leg or baseball bat innocently in some circumstances, yet the same object would be prohibited "when the circumstances of possession demonstrate an immediate atmosphere of danger." (Id. at p. 621; accord, People v. King (2006) 38 Cal.4th 617, 624.) In light of the deliberately broad nature of the statute's definition, the trial court could not determine as a matter of law whether the broomstick pieces were billies.
The cases we cite in this paragraph regarding the definition of the term "billy" address the possession of weapons outside the context of a penal institution. We see no reason, however, why their reasoning does not apply equally to the possession of the same type of weapon in prison.
The parties disagree about whether the trial court adequately corrected the initial error by changing the wording of the instruction. Thompson concedes that the second version of the instruction, that "[b]roomstick handles may be instruments or weapons of the kind commonly known as a billy" (italics added), was legally correct. But he argues that the trial court perpetuated the initial error by including the incorrect instruction along with the correct version in the written instructions the jury received prior to deliberations. He argues that the jury might have relied on the incorrect version of the instruction and convicted him on that basis.
The Attorney General responds that the trial transcript suggests that the jury did not actually receive a written copy of the incorrect instruction. The written version of the incorrect instruction appears in the record among the instructions read at the beginning of the trial to introduce the jury to the case and to the nature of jury service. The page numbers of these initial instructions run from one to seven. The correct version of the instruction appears in a second set of instructions pertaining to the end of trial. The second set of instructions includes a new set of page numbers, from one to 11. At the end of trial, the court made statements suggesting that the written instructions the jury received included only the second set. The court told the jury, "[y]ou have now been provided a copy of your jury instructions. I'm going to read the packet to you" (italics added). The court then read only the instructions in the second set of jury instructions, without referring to the existence of the first set of instructions or suggesting that they were included in the packet the jury received. After the attorneys finished closing arguments, the court invited the jury "to go to page [nine] of the jury instructions" and then read an instruction regarding jury deliberations. The instruction regarding jury deliberations appears at page nine of the second set of instructions, and the court again did not suggest that the jury had also received a different set of instructions with separate page numbers. The Attorney General argues that we should infer that the trial court gave the jury a written copy of only the second set of instructions.
We need not resolve this question because even if the trial court did give the jury a written copy of the incorrect instruction, that error was harmless. A jury instruction that relieves the prosecution of the burden of proving an element of an offense beyond a reasonable doubt violates the defendant's Fourteenth Amendment right to due process. (People v. Kobrin (1995) 11 Cal.4th 416, 423.) "Conflicting instructions or instructions that misdescribe an element of an offense are harmless 'only if "it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' " [Citation.] "To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." ' " (People v. Jeter (2005) 125 Cal.App.4th 1212, 1217.)
Even under that strict standard, the alleged error in the instructions did not prejudice Thompson. The prejudicial potential of an erroneous instruction turns in part on how the parties rely on the instruction in argument. Thus, in People v. Hayes, supra, 171 Cal.App.4th 549, the court held that an erroneous instruction regarding the definition of a type of weapon was prejudicial in part because the instruction was "the centerpiece of the prosecutor's closing argument." (Id. at p. 561.) By contrast, when the parties emphasize the correct interpretation of the law in their closing arguments, "any theoretical possibility of confusion [is] diminished." (People v. Garceau (1993) 6 Cal.4th 140, 189.) In this case, the prosecution did not rely on the incorrect instruction during closing arguments. Instead, the prosecutor said accurately that "[t]he instructions define [billy] for you as [a] club, [a] bludgeon, a stick, which [the broomstick handle] clearly is." The prosecutor thus argued that it was up to the jury to decide whether the broomstick handle met the definition of a billy. Thompson's attorney, for his part, stressed the importance of the correct instruction. He argued that the jurors "have to decide beyond a reasonable doubt whether those [broomstick pieces] were billies or weapons that were like bludgeon weapons."
The instruction was also harmless because Thompson in his testimony essentially conceded the truth of all of the elements of the offense. He admitted that he broke a prison broomstick into pieces, that he kept the pieces, and that he knew the pieces could be used as weapons. This was not a situation in which the jury could reasonably infer that Thompson possessed the items for an innocent purpose, and that they were therefore not prohibited by the statute. (See People v. Grubb, supra, 63 Cal.2d at p. 621.)
Thompson testified after the trial court agreed to correct the jury instruction regarding whether broomstick pieces were necessarily billies.
Thompson also argues that the jury could have reasonably inferred that the broomstick pieces, as displayed in a photo shown to the jury, were too small to be "of the kind commonly known as a . . . billy." (§ 4502, subd. (a).) But as we have seen, the statute's definition is deliberately broad, and we know of no minimum size or weight requirement. Indeed, the primary physical limitation we can discern from the case law is that the object must be capable of use as a club to strike the victim. (See, e.g., People v. Grubb, supra, 63 Cal.2d at p. 621; People v. Canales, supra, 12 Cal.App.2d at pp. 217-218.) We are aware of nothing in the record that casts doubt on whether the broomstick pieces met that requirement. Altamirano testified that "the brooms are pretty thick," and that the broomstick pieces he found in Thompson's possession were heavy enough to be used to hit someone. Thompson himself agreed that "[y]ou could use [the sticks] as billy clubs."
Thompson's claim of ineffective assistance of counsel fails for the same reason: He cannot demonstrate prejudice. In order to succeed on a claim of ineffective assistance of counsel, a defendant must show not only that his attorney failed to represent him adequately, but also "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.) Even if we assume for the sake of argument that the jury received the erroneous written instruction, and that Thompson's attorney was deficient in failing to notice and object, there is no reasonable probability that that failure affected the outcome of the case.
B. Resentencing under Senate Bill No. 136
On October 8, 2019, after we filed our original opinion in this case, the Governor signed Senate Bill No. 136 into law. The new law, which becomes effective on January 1, 2020, amends section 667.5, subdivision (b). Under the existing version of that subdivision, the trial "court shall impose a one-year term for each prior separate prison term" that a defendant served unless at least five years had passed in which the defendant had been free from custody without committing a new felony offense. Thompson's sentence included two 1-year enhancements under this law. Under Senate Bill No. 136, enhancements under section 667.5, subdivision (b) apply only if the defendant served a prior prison term "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Senate Bill No. 136, § 1.) Thompson's prior convictions were not for sexually violent offenses.
We granted Thompson's petition for rehearing in light of the enactment of Senate Bill No. 136. On rehearing, Thompson contends that the law applies retroactively to those whose cases are not yet final at the time the law becomes effective, and that because his case will not be final by January 1, he will be entitled to relief. The Attorney General agrees, as do we. "When an amendatory statute . . . lessens the punishment for a crime . . . , it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective." (People v. Garcia (2018) 28 Cal.App.5th 961, 972 (Garcia).) In enacting Senate Bill No. 136, the Legislature did not expressly state that the law will or will not apply retroactively. Thus, we infer that the Legislature intended Senate Bill No. 136 to apply retroactively to all those whose cases are not yet final when the law becomes effective. (People v. Lopez (Nov. 20, 2019, F075765) ___ Cal.App.5th ___ (Lopez); see also Garcia, supra, 28 Cal.App.5th at p. 972; People v. Superior Court (2018) 4 Cal.5th 299, 307-308 & fn. 5; In re Estrada (1965) 63 Cal.2d 740, 744-745; People v. Francis (1969) 71 Cal.2d 66, 75-77.)
Thompson's judgment will not be deemed final until the deadline for petitioning for a writ of certiorari in the United States Supreme Court has passed. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) That deadline will occur after Senate Bill No. 136 becomes effective on January 1, 2020. Because Thompson's case will not yet be final when the new law becomes effective, we will order the trial court to conduct a new sentencing hearing. (See Garcia, supra, 28 Cal.App.5th at p. 973.)
We agree with the Attorney General regarding the scope of the proceedings in the trial court: We will not order the trial court merely to strike the enhancements under section 667.5, subdivision (b), while leaving the remainder of the sentence unchanged. Instead, the trial court must be allowed on remand to reconsider all of its discretionary sentencing choices. An "aggregate prison term cannot be viewed as a series of separate independent terms, but rather must be viewed as one prison term made up of interdependent components. The invalidity of some of those components necessarily infects the entire sentence." (People v. Savala (1983) 147 Cal.App.3d 63, 68-69, disapproved on another ground by People v. Foley (1985) 170 Cal.App.3d 1039, 1044.)
Thompson's sentence was the product of the trial court's exercise of discretion in choosing from among several sentencing options under the relevant provisions of the Penal Code. When, as here, a trial court imposes consecutive sentences for offenses committed while the defendant was in prison, the trial court must calculate a single aggregate term for all the prison offenses. (See § 1170.1, subd. (c); People v. McCart (1982) 32 Cal.3d 338, 344-345.) This is the case regardless of whether the convictions for prison offenses occurred "in the same or different proceedings." (§ 1170.1, subd. (c); accord, Venegas, supra, 25 Cal.App.4th at pp. 1742-1743 [single aggregate sentence for offenses and convictions occurring several years apart].) When calculating a sentence in a case like this, the trial court treats "the greatest term of imprisonment imposed by the court for any of the crimes" as the principal term. (§ 1170.1, subd. (a).) All additional consecutive sentences are imposed as subordinate terms and are sentenced at one-third the middle term for the offense. (Ibid.)
At the time of his current conviction, Thompson was serving a six-year sentence for unauthorized possession of controlled substances in prison. (§ 4573.6, subd. (a).) The trial court elected to treat that six-year term as the principal term of Thompson's sentence. The current conviction became a subordinate term, and the court imposed a sentence of one-third the middle term, or one year, doubled due to the prior strikes. With two additional years for the prison priors under section 667.5, subdivision (b), this yielded an aggregate sentence of 10 years, a four-year increase from the existing sentence. But that was not the only option available to the trial court. The court could have selected the high term of four years for the current conviction, doubled to eight years because of the prior strikes, plus two more years for the prison priors. Because the sentence for the new conviction was longer than the previous conviction, it would have become the principal term of the aggregate sentence. (See § 1170.1, subd. (a).) The prior conviction of possession of controlled substances then would have become the subordinate term, and would have been reimposed at one-third the middle term, or one year, doubled to two years because of the prior strikes. (See Venegas, supra, 25 Cal.App.4th at p. 1744.) The total sentence would have been 12 years, two years longer than the sentence the trial court actually imposed. Alternatively, if the trial court had wished to be more lenient, it could have reduced Thompson's sentence by striking one or both of the prison priors for purposes of sentencing (see § 1385), or by granting Thompson's motion to strike his prior strikes. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) The court explicitly stated during the sentencing hearing that it was aware of all of these options, and chose a 10-year aggregate sentence as the most appropriate.
Now that the enhancements for prison priors under section 667.5, subdivision (b) no longer apply to Thompson, the trial court may wish to revisit its other sentencing choices. To do so would be a valid exercise of the trial court's discretion: "A judge's subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge's experiences with prior cases and the record in the defendant's case, cannot be ignored. A judge's subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria." (People v. Stevens (1988) 205 Cal.App.3d 1452, 1457.) When a component of the original sentence is invalidated, "[t]he trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal." (People v. Hill (1986) 185 Cal.App.3d 831, 834.) We therefore leave it to the trial court to exercise its discretion to resentence Thompson in light of the change in the law. (Cf. Lopez, supra, ___Cal.App.5th ___ [striking enhancements rather than remanding for resentencing because trial court imposed the maximum possible sentence, leaving no room for the court to exercise discretion on remand].)
DISPOSITION
The defendant's conviction is affirmed. The matter is remanded to the trial court with directions to resentence the defendant and amend the abstract of judgment.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
JOHNSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------