Opinion
D059460
05-14-2012
THE PEOPLE, Plaintiff and Respondent, v. RICHARD MARTIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCE302876)
APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed.
INTRODUCTION
A jury convicted Richard Martin of two counts of possessing a weapon in a penal institution (Pen. Code, § 4502, subd. (a); counts 1 and 2) and two counts of carrying a concealed dirk or dagger (Former Pen. Code, § 12020, subd. (a)(4), added by Stats. 1953, ch. 36, § 1, p. 653 and repealed by Stats. 2010, ch. 711, § 4, eff. Jan. 1, 2012; counts 3 and 4). The jury acquitted Martin of one count of possessing a weapon in a penal institution (§ 4502, subd. (a); count 5). In addition, the trial court declared a mistrial and dismissed another count of possessing a weapon in a penal institution (§ 4502, subd. (a); count 6) after the jury could not reach a verdict on the charge. The trial court also entered a judgment of acquittal under section 1118.1 on two counts of making criminal threats (§ 422; counts 7 and 8).
Further statutory references are also to the Penal Code unless otherwise stated.
In a separate proceeding, the trial court found true allegations Martin had three prior strike convictions (§§ 667, subds. (b)-(i), 1170.12). At the sentencing hearing, the trial court dismissed the prior strike conviction findings as to counts 2 and 4 and sentenced Martin to an aggregate term of 25 years to life in prison.
Martin appeals, contending the trial court denied him a fair trial by admitting and then failing to strike prejudicial evidence relevant only to the dismissed making criminal threats counts. In addition, he contends we must reverse his convictions because the trial court improperly instructed the jury with CALCRIM No. 250, relating to the union of act and general intent, instead of CALCRIM No. 251, relating to the union of act and specific intent or other mental state. Lastly, he contends we must reverse his convictions because the cumulative effect of the trial court's errors deprived him of due process and a fair trial. We conclude there is no merit to these contentions and affirm the judgment.
BACKGROUND
Possessing a Weapon in a Penal Institution (count 1) and Carrying a Dirk or Dagger (count 3)—June 26, 2011—First Instance
At approximately 12:45 a.m. on June 26, 2010, San Diego County Sheriff's Deputy Isaac Alvarado searched Martin, who was an inmate in the county's detention facility. Alvarado conducted the search because earlier in the day he overheard Martin tell another inmate he was always "strapped," meaning he always carries a weapon. Alvarado found two weapons concealed inside the inner waistband of Martin's pants. The weapons were made from toothbrush handles, with one end wrapped in cloth strips and the other end filed to a point (toothbrush shank). Alvarado believed the weapons were to be used as stabbing weapons.
Possessing a Weapon in a Penal Institution (count 2) and Carrying a Dirk or Dagger (count 4)—June 26, 2010—Second Instance
On the same day, at approximately 9:09 p.m., before escorting Martin to a medical appointment, Deputy Michael Hamner patted Martin down. He felt a bulge in the waistband of Martin's pants and found a three-inch toothbrush shank concealed there. He believed the weapon could be used as a stabbing weapon.
Possessing a Weapon in a Penal Institution (counts 5 and 6)—July 13, 2010
On July 13, 2010, Deputy John Barrios searched Martin's cell and found two weapons. Barrios found the first weapon (count 5) in Martin's desk. It consisted of a golf pencil tied to a long shaft of rolled up paper with ripped bed sheeting and string (pencil shank). Barrios found the second weapon (count 6), a toothbrush shank, hidden in some papers in an envelope.
Barrios believed both weapons could be used as stabbing weapons. He had seen similar jail-made weapons. He had also seen puncture wounds inflicted by similar weapons.
In October 2010 Barrios obtained a one-page letter written and signed by Martin. The letter was addressed to another inmate. In the letter, Martin stated he was good with a knife and loved putting holes in people.
Making Criminal Threats (counts 7 and 8)
In July 2010 Deputy Aaron Hoxie worked on the jail floor where Martin was housed. Martin was housed in an administrative segregation module on that floor. Barrios had previously informed Hoxie and other deputies that jail-made weapons had been found in Martin's cell.
On July 23, 2010, Hoxie conducted an inmate security check, which, for inmates in Martin's module, required Hoxie to observe every inmate through the window of the inmate's cell. Hoxie was unable to see inside Martin's cell because Martin had paper covering the window. Hoxie attempted to talk with Martin and told him to take the paper down. Martin did not respond.
Sometime later, Hoxie conducted another security check. Martin's cell window was still covered with paper. Hoxie told Martin to take the paper down. He also tried to knock the paper down by banging on the window. He then feigned a radio call to another deputy asking the deputy to "pop the door" because he was "going to pull this guy out by his hair." Martin responded by pulling the paper back from the window, at which point Hoxie was able to complete the security check.
The next day, Deputies Hoxie and James Fukushima escorted Martin to the day room while another deputy conducted a hygiene inspection of Martin's cell. Like Hoxie, Fukushima knew Martin had previously been found in possession of jail-made weapons.
Martin recognized Hoxie from the day before and became angry. Martin was also angry at the hygiene inspection. During the inspection, while Martin was seated at a table in waist and leg chains, Martin told Hoxie and Fukushima that "if the handcuffs came off, he was going to f—k [them] up." He also told them "he would put holes in [them]" and they "weren't s—t behind [their] badges."
After Hoxie and Fukushima returned Martin to his cell, Martin told Hoxie "to check his record" and said "he was going to put holes in [Hoxie] the first chance he got." Hoxie understood the latter remark to mean Martin wanted to stab him and possibly kill him. Martin also told Hoxie he was not "a yellow-bander." (See part I.A.2, post, for a further discussion of the detention center's inmate classification system and Martin's classifications.) Hoxie understood this to mean Martin was not weak, he would handle his business, and he would do whatever he needed to do.
At the time, Martin was "a green-bander" and "a yellow-bander." Hoxie understood Martin's "green-bander" status to mean Martin was "an assaultive risk or an escape risk." He further explained that inmates who wear green bands have either threatened deputies, been in fights with deputies, or have escaped or attempted to escape. Fukushima had essentially the same understanding of Martin's status. Fukushima also indicated "green-banders" are always escorted by a minimum of two deputies.
Martin's remarks to them caused Hoxie and Fukushima fear because of Martin's history of having shanks in his cell. Martin's remarks additionally caused Hoxie fear because Martin had told Hoxie he was going away forever and had nothing to lose. Hoxie explained, "If someone looks at me and tells me 'I'm going to put holes in you, and I've got nothing to lose,' I have no reason to not believe them." After this incident, Martin was not allowed out of his cell without waist chains.
DISCUSSION
I
Admission of and Failure To Strike Prejudicial Evidence
A
1
Prior to trial, Martin's defense counsel moved to exclude improper character evidence. The trial court granted the motion, except as to the making criminal threats charges (counts 7 and 8). As to these charges, the court tentatively indicated Martin's criminal or personal history information would be relevant and admissible, subject to a limiting instruction, to the extent it bore on how the victims perceived or reacted to Martin's threats.
Defense counsel acknowledged evidence bearing on the victims' fear was admissible. Nonetheless, defense counsel was concerned about the jury learning Martin was required to wear green prison clothing and the reason for the requirement. Defense counsel was also concerned about the jury learning Martin was in jail for reasons far more substantial than the threats and would, consequently, conclude he was a violent and dangerous person. Defense counsel asked that "the deputies be instructed to perhaps narrowly talk about what they know about him, and I think what they do know is he had shanks; he was in greens, and he's an elevated status. Something along those lines would be my request."
The trial court responded, "Well, they're entitled, in my view, to describe their knowledge of sheriff regulations and/or jail procedures whereby individuals are differently classified, more specifically, what being dressed out in the color green jail attire means or the basis for such attire."
The trial court ultimately decided not to make a final, specific ruling on the matter. Instead, the court stated, "This is just going to be something that we work our way through as the evidence unfolds, but I would caution both of you that if you have any specific questions or concerns in that regard, that we talk about them up front . . . outside the presence of the jury before venturing into the problematic area. [¶] So for now, we'll leave it at that. So the motion is granted with the exception noted by the court, and which ruling is subject to further consideration or reconsideration."
2
During trial, in addition to Hoxie and Fukushima's testimony about Martin's status, the prosecutor also elicited testimony from Barrios about the jail's use of different wristbands and clothing to identify inmates. Barrios explained an inmate with a red band or clothing is a medical inmate, an inmate with a blue band or clothing is in the general population, an inmate with a yellow band or clothing is in protective custody, and an inmate with a green band or clothing is someone jail security staff has designated as either violent or an escape risk. Barrios also explained an inmate may have multiple designations and stated Martin was both a yellow band and a green band inmate. Barrios elaborated, "He is a protective custody inmate, but because of his violent tendencies or his accusations, he's actually cross-classified as both protective custody and violence. So he's a yellow green-bander."
Later, during Barrios's testimony about the letter Martin sent to another inmate, which contained a reference to Martin's protective custody status, Barrios explained a protective custody inmate is vulnerable either because of the charges against him or for some other reason and is kept separate from the other inmates for his own safety. In response to a question posed by defense counsel, Barrios further explained that protective custody inmates are placed in modules with inmates with the same status and similar safety concerns.
After the prosecutor and defense counsel completed their examinations of Barrios, the trial court asked him additional questions about the jail's inmate classification system. Barrios explained inmates are required to wear wristbands reflecting their status. If an inmate has multiple classifications, one of which is as a green-bander, deputies are more likely to have the inmate wear a green band because the inmate is violent or an escape risk.
The trial court also elicited testimony from Barrios that most inmates are placed in protective custody at their own request and are housed in modules with up to 10 other inmates who are also in protective custody or are otherwise being segregated from other inmates. Inmates in protective custody are in their cells for 23 hours per day, and they have no physical interaction with any of the other inmates.
Defense counsel never objected to the admissibility of Barrios's testimony. In addition, she did not move to strike the testimony or request a limiting instruction after the trial court granted a judgment of acquittal on the making criminal threats charges.
B
Martin contends the trial court deprived him of due process and a fair trial by admitting Barrios's classification testimony because the testimony was prejudicial, it violated pretrial limitations set by the trial court, and it had no relevance to how Hoxie or Fukushima perceived Martin's remarks or whether they experienced sustained fear from them. Martin further contends the trial court's eliciting of additional classification testimony from Barrios reinforced the prejudice. We need not decide whether the trial court erred in admitting this evidence because we conclude its admission was harmless whether assessed under the federal constitutional (Chapman v. California (1967) 386 U.S. 18, 24) or state (People v. Watson (1956) 46 Cal.2d 818, 836) standard of review.
Barrios did not provide the sole testimony regarding Martin's classifications and housing. Hoxie and Fukushima also provided such testimony. Martin implicitly acknowledges their testimony was relevant, at least at the time they gave it, and he has not directly contested its admissibility on appeal. Even without the classification testimony or other testimony related to making criminal threats charges, Martin's violent nature was readily apparent from his handwritten letter to another inmate, in which he stated he was good with a knife and loved putting holes in people. Martin is also not contesting the admissibility of this evidence on appeal.
In addition, after the trial court granted a judgment of acquittal on the making criminal threats charges, the trial court instructed the jury those charges were no longer before it. Consistent with this procedural posture, the prosecutor did not rely upon or even refer to Martin's classification in her closing arguments regarding the remaining charges.
Conversely, defense counsel relied upon Martin's special housing status to support her closing argument that Martin may not have known the weapons were in his pants. Specifically, defense counsel argued inmates are given clean pants a couple times a week, the pants are rotated through different inmates, it was not uncommon to find shanks in jail, Martin was in an area housing high risk inmates who may have more access to shanks, shanks are more likely to be found in the clothing these inmates share, and, therefore, Martin may not have known the shanks were in his pants.
Moreover, nothing in the record supports Martin's contention the classification evidence was likely to have adversely swayed the jury. The weapon possession charges were straightforward, and Martin did not seriously dispute the deputies' testimony. Instead, Martin's defenses were that the items the deputies found were not weapons and that he did not knowingly possess them. The jury acquitted Martin of the weapon possession charge in count 5 and failed to reach a verdict on the weapon possession charge in count 6. Since Barrios's testimony supplied the primary support for these counts, the jury could not have accorded his testimony undue weight.
Further, there was no dispute about where and how Barrios found the weapons because Barrios's search of Martin's cell was videotaped from beginning to end. Consistent with Martin's defenses, the only disputed issues on counts 5 and 6 were whether the items were actually weapons and whether Martin knew they were in his cell. These issues would not have been obstacles for a jury inclined to find guilt because of Martin's classifications. Consequently, we conclude there is no reasonable possibility exclusion of the classification evidence would have altered the jury's verdict.
Given our conclusion, we need not address the People's forfeiture argument or Martin's related claim of ineffective assistance of trial counsel.
II
Use of CALCRIM No. 250 Instead of CALCRIM No. 251
A
As part of its instructions to the jury, the trial court used a modified version of CALCRIM No. 250 to inform the jury about the requirement for a union of act and wrongful intent. Specifically, this instruction explained that, in order for the jury to find Martin guilty of the crimes charged, it must find both that he committed a prohibited act and that he did so with a wrongful intent. The instruction then explained, "A person acts with wrongful intent when he intentionally does a prohibited act; however, it is not required that he intend to break the law. The act required is explained in the instruction for each crime."
The unmodified CALCRIM No. 250 instruction provides, "The crime[s] [or other allegation[s]] charged in this case require[s] proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime[s] (in this case/ of [or to find the allegation[s] of true]), that person must not only commit the prohibited act [or fail to do the required act], but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act [or fails to do a required act]; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime [or allegation]."
Like CALCRIM No. 250, CALCRIM No. 251 informs the jury of the requirement for a union between act and wrongful intent. However, unlike CALCRIM No. 250, CALCRIM No. 251 does not permit the presumption of wrongful intent from commission of the prohibited act. Instead, this instruction explains that, to find a person guilty of the charged crimes, the person must have intentionally committed the prohibited act and must have done so with a specific intent or mental state. The instruction then refers the jury to the instruction for the particular crime for an explanation of the required act and specific intent or mental state. (CALCRIM No. 251.)
The unmodified CALCRIM No. 251 instruction provides, "The crime[s] [(and/or) other allegation[s]] charged in this case require proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of the crime[s] (in this case/ of [or to find the allegation[s] of true]), that person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/ [and/or] mental state). The act and the specific (intent/ [and/or] mental state) required are explained in the instruction for that crime [or allegation]. [¶] [¶] [The specific (intent/ [and/or] mental state) required for the crime of is .]
Although defense counsel did not object to the trial court's use of CALCRIM No. 250, Martin contends on appeal that the trial court was required to use CALCRIM No. 251 instead of CALCRIM No. 250 because the charges against him contained a knowledge element. (People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [the crime of carrying a concealed dirk or dagger contains a knowledge element]; People v. Saavedra (2007) 156 Cal.App.4th 561, 571 [to establish a violation of section 4502, the prosecution must prove the defendant knew he possessed the prohibited object].) He further contends the error requires us to reverse his convictions because it deprived him of due process and the right to a jury trial as the jury may have believed it did not need to decide whether Martin had the requisite knowledge to be guilty of the charges against him.
The People implicitly concede the error, but argue it was harmless. We agree.
B
" 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant.' " (People v. Solomon (2010) 49 Cal.4th 792, 822.) Martin has not met this burden.
We determine the correctness of jury instructions " ' "from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Solomon, supra, 49 Cal.4th at p. 822.) We assume jurors are intelligent and capable of understanding and correlating all jury instructions given to them. (People v. Riley (2010) 185 Cal.App.4th 754, 767.) We further interpret jury instructions to support the judgment rather than defeat it if the instructions are reasonably susceptible to such interpretation. (Ibid.)
In addition to CALCRIM No. 250, the trial court instructed the jury on the elements of each charge against Martin. The trial court's instruction related to the weapon possession charges informed the jury the prosecutor had to prove Martin knew he possessed a dirk, dagger, or sharp instrument, or knew he had such an object under his custody or control, and knew the object could be used as a stabbing weapon. (CALCRIM No. 2745.) The trial court's instruction to the jury related to the concealed dirk or dagger charges similarly informed the jury the prosecutor had to prove Martin knew he was carrying a dirk or dagger on his person and knew it could be readily used as a stabbing weapon. (CALCRIM No. 2501.)
In addition, the parties' closing arguments focused heavily on the knowledge element, dispelling any notion the jurors may have been unaware they had to decide the element. Moreover, the jurors demonstrated their understanding of their task by acquitting Martin on count 5 and failing to reach a verdict on count 6, where Martin's acts of possession were not seriously disputed. For these reasons, we conclude the error was harmless under any standard (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836) as there is no reasonable possibility the error affected the jury's verdict.
Given our conclusion, we need not address the People's forfeiture argument.
--------
III
Cumulative Error
Martin contends the accumulation of errors in his case warrants reversal of his convictions. "A claim of cumulative error is in essence a due process claim and is often presented as such [citation.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Rouse (2012) 203 Cal.App.4th 1246, 1276.) For the same reasons we concluded there is no reasonable possibility either of the above claimed errors separately affected the jury's verdict, we also conclude there is no reasonable possibility they collectively affected the jury's verdict. Consequently, we conclude the accumulation of the claimed errors did not deprive Martin of due process and a fair trial.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: MCINTYRE, J. O'ROURKE, J.