Opinion
2d Crim. No. 188387 No. 1178625
01-13-2011
THE PEOPLE, Plaintiff and Respondent, v. LANCELETT LEE, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Sharon E. Loughner, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Lancelett Lee appeals his conviction by jury of multiple counts: possession of cocaine in jail (Pen. Code, § 4573.6, count 1); possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a), count 2); failure to appear after being released on bail (Pen. Code, § 1320, subd. (b), count 3); being in public while under the influence of a controlled substance (Health & Saf. Code, § 11550, count 4); and two counts of resisting a peace officer (Pen. Code, § 148, subd. (a)(1), counts 5 & 6). The court found true an allegation that Lee had served a prior prison term. (§ 667.5, subd. (b).) It sentenced Lee to three years eight months in prison, consisting of a low term of two years for count 1; a consecutive term of eight months for count 3; a consecutive term of one year for the prior prison term; and three terms of thirty days in jail each for counts 4, 5 and 6 with credit for time served. The court did not state on the record whether the three terms of thirty days in jail were to run concurrently or consecutively; the clerks minute order stated they were to run consecutively. The court imposed but stayed sentence on count 2 pursuant to section 654.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends: (1) that there was insufficient evidence to support his conviction for knowingly possessing cocaine in jail (§ 4573.6); (2) that the instruction on willful failure to appear pursuant to section 1320 was erroneous because it contained a presumption that was inapplicable; (3) that the sentence on misdemeanor counts 4, 5 and 6 should run concurrently because the court did not pronounce whether those counts should run concurrently or consecutively; and (4) that one of the two counts of misdemeanor resisting a peace officer (counts 5 and 6) should have been stayed pursuant to section 654.
We agree that concurrent sentences should have been imposed on counts 4, 5 and 6, and that one of the two counts of misdemeanor resisting a peace officer should have been stayed pursuant to section 654. We reject Lees other contentions. We modify the judgment to provide that the sentences on counts 4, 5 and 6 shall run concurrently and that execution of the sentence on count 6 is stayed. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 20, 2005, officers conducted a parole search at Lees residence. Lee was not the parolee. Lee interfered with the search and resisted two officers. (§ 148, subd. (a)(1), counts 5 & 6.) During the search, officers instructed the occupants to go into the living room. Lee initially refused. He said, "This is my fucking house I dont have to do shit. I am not on parole." He was animated and belligerent. Officers persuaded Lee to enter the living room where they had assembled other occupants.
Sergeant J. Haley instructed Lee to sit on the couch, but Lee refused. Lee said, "Fuck you, I am not doing the shit you tell me to." According to Officer Norman Come, Sergeant Haley reached over "to grab" Lees arm but Lee pulled back. It is unclear from the testimony whether Haley and Lee made physical contact. Officer Come then grabbed Lees right arm. Lee pulled back, flailed his arms and fell backwards onto the couch. When he continued to flail his arms, Officer Come tried to get control of Lees hands and struck Lee in the face to stun him. Officer Come then got Lee into a control hold and took him into custody.
Neither Officer Come nor Sergeant Haley was injured. In the patrol car, Lee calmed down and apologized. Lee was under the influence of cocaine. (Health & Saf. Code, § 11550, subd. (a), count 4.) He was cited at the police department and released.
A few months later, on July 9, 2005, officers again entered Lees home. This time they entered to serve a warrant on Lees wife. Lees niece gave her consent to the officers. Lee was home. According to Officer Eligio Lara, Lee was wearing only socks and pajama bottoms. Lee was very cooperative this time. He informed Officer Lara that there was a warrant out for his arrest. Officer Lara arrested Lee and took him to the county jail. Officer Lara testified that before Lee left, his niece brought Lee a shirt and shoes.
On the way to the police station, Officer Lara asked Lee whether he had any weapons or narcotics that Officer Lara may have missed. Lara warned Lee that it would be worse for Lee if weapons or narcotics were found in the cell. Lee did not turn anything over to Lara. During the inventory search at the jail, officers found a rock of cocaine in Lees sock. (§ 4573.6; Health & Saf. Code, § 11350, subd. (a), counts 1 & 2.) Lee was cited and released.
Lee failed to appear for court on July 19, 2005. A warrant was held until July 26, 2005, when Lee appeared with his counsel. The matter was continued to July 27, 2005, at which time Lee again failed to appear. (§ 1320, count 3.) He next appeared on August 8, 2005. Lees wife had died, and her funeral was held on July 19, 2005. Lee was charged and convicted of failure to appear on July 27, but was not charged for the July 19 failure.
At trial, Lee testified on his own behalf. In defense of the resisting arrest charge, he testified that he felt the search was illegal and the officers should not have been there. He said it was impossible to comply with the officers directions. One officer told him to sit on the couch, which he did, but then another officer told him to "get up and sit over there." When he got up to move, he was attacked from behind. An officer pushed him down forward onto the couch with a knee in Lees back, and told Lee to put his hands behind his back. Lee testified that it was impossible to put his hands behind his back because each arm was held by an officer. According to Lee, Officer Come punched him in the jaw while the other officer held him down on the couch.
Lee also testified that he had no idea that there was cocaine in his sock on July 9, 2005, until the inventory search at the jail. Lee testified that his niece brought the socks to him before he left for jail. This was in contrast to Officer Laras testimony that Lee was already wearing socks when the officers arrived. Lee testified that his niece must have brought the socks from the communal clean sock pile, and someone else must have hidden cocaine in them.
Lee also testified that he missed his court date in July because his wife had recently passed away. She had been in a diabetic coma for two weeks before that. On July 19, 2005, he arrived for court late because it was the day of his wifes funeral. He attended the funeral later in the afternoon. On July 27, 2007, he missed court because he was grieving and could not keep up with himself.
DISCUSSION
Sufficiency of Evidence That Lee Knowingly Possessed Cocaine in Jail (Count 1)
Lee argues that there was insufficient evidence that he knowingly possessed cocaine in jail. (§ 4573.6) Section 4573.6 provides that a person who "knowingly has in his or her possession... within the grounds belonging to any jail... any controlled substance[]..." is guilty of a felony. Appellant contends that he did not intend to posses narcotics in jail; he only possessed them in jail because he was forced to do so when he was arrested and transported to jail. He argues that if he had surrendered the narcotics before entering the jail, he would have had to admit to simple possession, and therefore his conviction violates his privilege against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution. These contentions were recently rejected in People v. Gastello (2010) 49 Cal.4th 395 and People v. Low (2010) 49 Cal.4th 372.
The language of section 4573.6 does not require proof of intent to possess narcotics in jail. (People v. Low, supra, 49 Cal.4th 372; People v. Gastello, supra, 49 Cal.4th 395.) In Gastello and Low, the Court held that section 4573 (knowingly bringing narcotics into jail) only requires knowledge of the presence and nature of the narcotics and does not require any intent to carry the narcotics into the jail. (Low, at p. 386; Gastello, at pp. 402-403.) The language of section 4573.6 is materially similar, and also requires only knowledge of the presence and nature of the narcotic. In Gastello, the defendant possessed methamphetamine when he was arrested and transported to jail. On the way, the transporting officer warned him that possession of narcotics in jail would be a felony. He remained silent. The methamphetamine was discovered during booking, and his conviction for bringing narcotics into jail was proper. The circumstances in Low were almost identical, but in Low the transporting officer asked the defendant if he had narcotics and he denied having any. Again, the conviction was proper.
Appellants contention that his privilege against self-incrimination was violated was also rejected in Gastello. "[T]he statutory scheme that applied as defendant entered jail did not itself operate in a compelled testimonial manner, and did not prevent him from avoiding commission of the ensuing criminal act of bringing a controlled substance inside the facility." (People v. Gastello, supra, 49 Cal.4th at p. 403.) Gastello and Low were decided on June 24, 2010, after briefing was complete in this case. By letter brief dated July 8, 2010, appellants counsel acknowledged that Gastello and Low are contrary to the positions posited by appellant.
We conclude that sufficient evidence supported appellants conviction for violating section 4573.6, because a jury could reasonably have inferred from the evidence that appellant knew when he was transported to jail that he had cocaine in his sock. Nothing more was required.
Claimed Instructional Error (Count 3)
Lee claims the jury instruction on willful failure to appear was erroneous because it included a presumption that did not apply. (§ 1320, subd. (b).) Consistent with the statute, the instruction stated, "It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court." (§ 1320, subd. (b).) The presumption did not in fact apply to Lee because he did appear within 14 days of July 27, 2005.
Lee asked the trial judge to remove the presumption from the section 1320 instruction, but later acquiesced. Assuming Lee did preserve the issue by requesting a modification (People v. Hillhouse (2002) 27 Cal.4th 469, 503), it is not reasonably likely that the jury was misled. (People v. Malone (1988) 47 Cal.3d 1, 52.) The judge instructed the jury to, "[d]isregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts." (CALJIC No. 17.31.) We presume the jury followed this instruction. (People v. Foote (1957) 48 Cal.2d 20, 23.)
Claim That Sentence on Misdemeanor Counts 4, 5, and 6
Should Run Concurrently
We agree with appellant that the sentences for counts 4, 5 and 6 must run concurrently because the court did not state otherwise on the record at the sentencing hearing.
Section 669 provides that, when a person is convicted of two or more crimes, "[u]pon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." It is evident from the reporters transcript that, when the court pronounced judgment, it did not specify how the terms on counts 4, 5 and 6 should run. They must therefore run concurrently notwithstanding the fact that the minute order and abstract ofjudgment each state that the terms were to run consecutively. The oral pronouncement controls.
The minute order and abstract of judgment do not accurately reflect what happened at the sentencing hearing. Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 Cal.3d 466, 471.) The clerk cannot include penalties in the abstract of judgment that are not orally imposed by the judge. (Ibid.; People v. Zachery (2007) 147 Cal.App.4th 380, 386.) Similarly, the abstract of judgment cannot add to or modify the judgment which it purports to digest or summarize. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will order correction of the abstract ofjudgment to reflect the oral judgment of the court (People v. High (2004) 119 Cal.App.4th 1192, 1200) and the resulting concurrent terms. (§ 669.)
Claim That Count 6 Should Have Been Stayed
Pursuant to Section 654
In count 5, Lee was charged and convicted of misdemeanor resisting, obstructing or delaying Sergeant J. Haley during the first parole search on April 20, 2005. (§ 148, subd. (a)(1).) In count 6, Lee was charged and convicted of misdemeanor resisting, obstructing or delaying Officer Norman Come on the same occasion. (Ibid.)
Because section 148, subdivision (a)(1) (misdemeanor resisting arrest) does not proscribe an act of violence, the multiple-victim exception to section 654 does not apply and the sentence on either count 5 or 6 should have been stayed. The fact that the sentences run concurrently does not cure the error. (People v. Nor Woods (1951) 37 Cal.2d 584, 586.)
Section 654 prohibits multiple punishments for a single act, even though the act constitutes more than one crime. (People v. Solis (2001) 90 Cal.App.4th 1002, 1021.) Section 654 applies if the crimes are part of a single, indivisible transaction. We review the trial courts factual determination that multiple convictions are part of a single, indivisible transaction under the substantial evidence test. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) Here, the court made no finding on the issue, but it is apparent from the record that Lee committed both crimes with the single objective of resisting the officers efforts to seat Lee on the couch. Lee pulled away from both officers, but did so nearly simultaneously with a single objective. Section 654 therefore applies to stay execution of one of the counts unless the multiple victim exception applies.
The facts here are unlike those in People v. Hairston (2009) 174 Cal.App.4th 231, in which the court affirmed multiple punishment for 3 counts of violating section 148, subdivision (a)(1) where the defendant formed a "new and independent intent with each officer he encountered," in three different locations near three different groups of residences during an extended foot chase. (Id. at p. 240.) Hairston was decided after briefing was complete in this case and was not cited by either party.
Under the multiple-victim exception to section 654, "even though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim." (People v. Ramos (1982) 30 Cal.3d 553, 587, reversed on other grounds in California v. Ramos (1983) 463 U.S. 992.) "The purpose of the protection against multiple punishment is to insure that the defendants punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person." (Neal v. State (1960) 55 Cal.2d 11, 20.)
The multiple victim exception only applies to a crime of violence. A crime of violence "is defined to proscribe an act of violence against the person." (People v. Hall (2000) 83 Cal.App.4th 1084, 1092.) Felony resisting arrest has been recognized as a crime of violence against the person for purposes of the multiple victim exception because "[t]he statutory language [of section 69] specifically provides that the offense is one involving resisting an officer by force or violence." (People v. Martin, supra, 133 Cal.App.4th at p. 782.) Misdemeanor resisting arrest has not been recognized as a crime of violence against the person in any published case.
"Violence" as an element of proof is essential to the multiple victim exception. "This is the only way that the multiple-victim exception to section 654s proscription against multiple punishment makes sense: The existence of an additional victim of the same violent act creates a separate offense, with a different item of proof, in those cases where the crime is defined in terms of an act of violence against a person." (People v. Hall, supra, 83 Cal.App.4th at p. 1092.)
Misdemeanor resisting does not require violence as an element of proof. Section 148 requires proof only that the defendant "willfully resist[ed], delay[ed], or obstructed]" an officer "in the discharge or attempt to discharge any duty of his or her office...." We conclude that the multiple victim exception does not apply to misdemeanor resisting because no proof of violence is required.
We recognize that appellant may have actually used force or violence against each officer when he pulled his arm away from Officer Come and flailed his arms. But the prosecutor did not undertake to prove it. Every case that has applied the multiple victim exception involved a statute that expressly required proof of force or violence or injury to a victim. "[I]n each case where the multiple-victim exception was satisfied, the qualifying crime, at least in conjunction with any allegations in enhancement, was defined to proscribe an act of violence committed against the person." (People v. Hall, supra, 83 Cal.App.4th at p. 1091.)
The case of Martin, on which respondent relies, is no exception. In Martin the multiple victim exception applied to one count of section 69 (resisting "by force or violence") and one count of section 243, subd. (c)(2) (unlawful use of "force or violence" on an officer) committed during a single struggle with four officers. Proof of violence was necessary to both convictions.
The defendant in Martin argued that the crime of violent resisting (§ 69) is not "against a person" because violence is used to "get away from" officers. (People v. Martin, supra, 133 Cal.App.4th at p. 782.) In that context, the court wrote: "Whether the statute is framed as a crime against the person [citation] or, while not so framed, is, in fact, such a crime, makes no difference in assessing whether the multiple-victim exception is applicable. The test is whether, in fact, a particular type of crime is a crime of violence against the person." (Ibid., italics added.)
Respondent places great weight on this last sentence, quoted out of context, to argue that a crime may be one "of violence" even if it is not defined to proscribe an act of violence, so long as it is "in fact" committed with violence. The interpretation is contrary to the Martin courts explicit statement: "[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime... is defined to proscribe an act of violence against the person." (People v. Martin, supra, 133 Cal.App.4th at p. 782, quoting People v. Solis, supra, 90
Cal.App.4th at p. 1023, italics added.) Respondents interpretation also cannot be reconciled with the rationale behind the multiple-victim exception, which requires that the greater culpability of one who "commits an act of violence with the intent to harm more than one person or by a means likely to cause harm" be established with evidence of violence or injury as an "item of proof." (Neal v. State, supra, 55 Cal.2d at p. 20; People v. Hall, supra, 83 Cal.App.4th at p. 1092.)
In each of the cases relied upon by respondent, proof of violence or infliction of injury was required as an element of the substantive offense. In People v. Solis, supra, 90 Cal.App.4th at pp. 1023-1024, the court held that making criminal threats is a crime of violence because it requires proof of an injury (sustained fear). In People v. Pantoja (2004) 122 Cal.App.4th 1, 15-16 the court held that child endangerment was a crime of violence because it requires proof of injury or endangerment of a child under circumstances or conditions likely to produce great bodily harm or death. In In re Sheridan (1964) 230 Cal.App.2d 365, cited by the dissent, the absence of physical contact was not addressed by the court.
In contrast, section 148, subdivision (a) does not require a jury finding that the defendant injured anyone or used violence. It can be committed by means that are not likely to harm anyone, such as by giving a false name (People v. Christopher (2006) 137 Cal.App.4th 418, 422), or, as in appellants case, by saying to an arresting officer such as Sergeant Haley, "Fuck you, I dont have to do anything you tell me."
Lees situation is like that of the defendant in People v. Hall, supra, 83 Cal.App.4th 1084. In Hall, a single act of exhibiting a loaded shotgun and pointing it in a threatening manner at multiple officers in violation of section 417, subdivision (c) placed each of the officers in grave danger of injury but did not fall within the multiple victim exception to section 654, because the statute did "not require, as a matter of the crimes definition, an intent to harm, or a likelihood of harming, any person." (Id. at pp. 10911092.)
Lees conduct did carry the potential for violence. His conduct may even have been sufficiently violent to sustain proof of that element in a prosecution for felony resisting arrest pursuant to section 69. However, the prosecutor made a discretionary decision to charge only the misdemeanor offense. As a result, proof of force or violence was not required and one count must be stayed.
Lee did not waive the error. Although he did not object at sentencing, "[e]rrors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal." (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.)
DISPOSITION
We modify the judgment to provide that the sentences on counts 4, 5 and 6 shall run concurrently and to stay execution of the sentence on count 6, pursuant to section 654. The trial court is directed to amend the abstract ofjudgment accordingly and forward it to the Department of Corrections. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
I concur:
PERREN, J.
Yegan, Acting P.J. Dissenting
I respectfully dissent. Before explaining why the majority is incorrect, I point out the filing of this opinion may have some unfortunate consequences. First, where, as here, actual force is used in resisting arrest, prosecutors will not charge this section but will instead charge violations of battery on a peace officer. Or, the prosecutor may charge a violation of Penal Code section 69 which may or may not meet the majority standard for imposing consecutive sentences. I say "may not," because even this section can be committed by a simple threat without the infliction of actual violence. Second, at least in theory, if this rule becomes known, it may have the unfortunate effect of emboldening a defendant to "resist" all officers because he can only be punished for "resisting" one officer. The potential for violence in such cases is a sufficient basis for the allowance of the consecutive sentences for multiple victims and there is no valid reason for allowing such a defendant to "escape" punishment where multiple victims are, in fact, resisted. The majority, however, insist that the ability to impose consecutive punishment is strictly dependent on whether the crime may only be committed by violence. This harkens back to the strict days of code pleading.
Our Supreme Court has indicated that we should look to the "central element" of the offense in determining whether or not a person convicted of multiple crimes may be punished consecutively (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351) but the cases do not require a strict code pleading test requiring that a certain crime may only be punished consecutively if it can be only by violence. For example, In re Sheridan (1964) 230 Cal.App.2d 365, held that multiple consecutive sentences did not violate Penal Code section 654 where the defendant annoyed and/or molested four separate girls without even touching them. The court so held because each of the crimes committed involved acts of violence against separate victims. The majority opinion creates a conflict with In re Sheridan. It also creates a conflict with other cases which have applied the multiple victim/crime of violence exception to Penal Code section 654 where no violence was either required or used. (E.g. People v. Solis (200l) 90 Cal.App.4th 1000, 1024 [making criminal threats, § 422], People v. Pantoja (2004) l22 Cal.App.4th 1, 15-16 [child endangerment, § 273a subd. (a)].)
Rather than focusing on pleading, we should be focusing on what happened "in fact" in determining whether the multiple victim/crime of violence exception applies. (People v. Martin (2005) l33 Cal.App.4th 776, 782.) This is not my idea. As indicated by our Supreme Court in Neal v. Superior Court (l960) 55 Cal.2d 11, 20, we should insure that the defendants punishment is "...commensurate with his criminal liability." Surely a defendant who willfully resists two officers is "more culpable" than a defendant who resists a single officer. (Id. at p. 20.) In the presenting situation, the trial court should be able to impose a consecutive sentence.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
James F. Rigali, Judge
Superior Court County of Santa Barbara
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Sharon E. Loughner, Deputy Attorney General, for Plaintiff and Respondent.