Opinion
F079287
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ROY WILLIAM CAOUETTE, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Erin Doering, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CR-18-005859, 4002773)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Erin Doering, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Snauffer, J.
-ooOoo-
In Stanislaus County Superior Court case No. 4002773, Roy William Caouette (defendant) pled no contest to carrying a concealed dirk or dagger. (Pen. Code, § 21310.) On October 3, 2017, he was sentenced to the upper term of three years, with 18 months to be spent in custody and 18 months on mandatory supervision. (§ 1170, subd. (h).)
All statutory references are to the Penal Code unless otherwise stated.
In Stanislaus County Superior Court case No. CR-18-005859, a jury convicted defendant of carrying a concealed dirk or dagger. (§ 21310.) Following a bifurcated court trial, he was found to have served two prior prison terms. (§ 667.5, subd. (b).) On May 13, 2019, he was sentenced to four years, with three years to be spent in custody and one year on mandatory supervision. (§ 1170, subd. (h).) All fees, fines, and assessments were stayed based on defendant's inability to pay. Defendant's mandatory supervision in case No. 4002773 was revoked based on the evidence presented at trial in case No. CR-18-005859, and he received a time-served disposition in that matter.
Defendant filed a separate notice of appeal in each case. His notice of appeal in case No. 4002773 states the appeal is after a contested violation of probation. A contested violation of probation is appealable pursuant to section 1237, subdivision (b) without the need for a certificate of probable cause. (People v. Coleman (1975) 13 Cal.3d 867, 871, fn. 1; cf. Cal. Rules of Court, rule 8.304(b)(1).) Neither party suggests any reason to treat an appeal following a contested violation of mandatory supervision differently. (See People v. Buell (2017) 16 Cal.App.5th 682, 687.)
On appeal, defendant contends (1) the evidence was insufficient to prove the item he possessed constituted a dirk or dagger, and (2) his prior prison term enhancements must be stricken. We disagree with his first claim, but will order the enhancements stricken and the matter remanded for resentencing.
FACTS
At approximately 9:15 p.m. on August 28, 2018, Stanislaus County Sheriff's Deputy Jasdeep Dhanota was on patrol in Modesto, when he was approached by a gas station employee who reported that there were several transients in the corner of the gas station. They were looking through items on the ground.
Dhanota made contact with defendant, who was one of the individuals. Defendant was wearing a large green jacket and blue jeans. Dhanota asked if defendant had any weapons on him. Defendant responded that he had a knife in his pocket. Dhanota observed a knife handle extending out of defendant's back right pocket. The knife itself appeared to be an unmodified kitchen cleaver. One side was a blade, and the corners at each end of the blade were sharp. In Dhanota's opinion, the front corner was capable of stabbing and of penetrating a body with the right use of force.
DISCUSSION
I
SUFFICIENT EVIDENCE SUPPORTS A CONCLUSION THE ITEM IS A DIRK OR DAGGER.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "If the circumstances reasonably justify the [trier of fact's] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Instead, reversal is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
With exceptions not relevant here, "any person in this state who carries concealed upon the person any dirk or dagger is punishable by imprisonment ...." (§ 21310.) For purposes of this section, " 'dirk' or 'dagger' means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death." (§ 16470.) This definition, the terms of which "are to be literally applied and 'strictly construed' " (In re George W. (1998) 68 Cal.App.4th 1208, 1214), "encompass[es] both inherently dangerous stabbing weapons and instruments intended for harmless uses but also capable of inflicting serious harm" (People v. Mowatt (1997) 56 Cal.App.4th 713, 719). No intent to use the concealed instrument as a stabbing weapon is required. (People v. Rubalcava (2000) 23 Cal.4th 322, 328.)
The definition of " 'dirk' or 'dagger' " has undergone a number of changes over the years, with the present definition having been enacted effective January 1, 1996. (Former § 12020, subd. (c)(24), now § 16470, as amended by Stats. 1995, ch. 128, § 2; see People v. Castillolopez (2016) 63 Cal.4th 322, 328-329.) Immediately prior to this amendment, former section 12020, subdivision (c)(24) defined the prohibited item as "a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death." (Former § 12020, subd. (c)(24), as amended by Stats. 1994, ch. 23, § 4.) In light of the changes, cases discussing whether an instrument qualified as a dirk or dagger under previous definitions, such as this court's opinion in People v. Barrios (1992) 7 Cal.App.4th 501, on which defendant relies, are of limited use to a determination under the current definition. --------
Whether the instrument possessed by defendant constituted a dirk or dagger within the statutory definition was a question of fact for the jury to determine. (People v. Bain (1971) 5 Cal.3d 839, 851.) Not only did jurors have before them Dhanota's description and photographs of the item, the actual object was admitted into evidence and passed among them during trial, and they asked to see it during deliberations. Although defense counsel argued the front corner of the blade was rounded and the item could not be used to stab someone and so defendant could not have known the instrument was readily usable as a stabbing instrument, the fact remains the jury examined the actual item and rejected this position. We have viewed the photographs that were admitted into evidence, and are unable to say that no reasonable trier of fact could find the elements of the charged crime beyond a reasonable doubt. While the cleaver clearly was not primarily designed or altered to be a stabbing instrument, this is no longer required. The two pointed corners on either end of the blade are such that they could readily be used to stab and could, depending on the amount of force used and location on a human body of the stabbing, inflict great bodily injury or death.
II
THE PRIOR PRISON TERM ENHANCEMENTS MUST BE STRICKEN.
On May 13, 2019, defendant was sentenced, in case No. CR-18-005859, to the middle term of two years plus, pursuant to section 667.5, subdivision (b), an additional year for each of his two prior prison term enhancements. Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) amended section 667.5, subdivision (b) to provide for imposition of a prior prison term enhancement only where the prior offense was a sexually violent offense as defined in subdivision (b) of Welfare and Institutions Code section 6600. (§ 667.5, as amended by Stats. 2019, ch. 590, § 1.) Defendant's prior convictions do not meet this requirement, and defendant contends the enhancements based thereon must be stricken. The Attorney General concedes the point. We agree, having recently determined the change in law applies retroactively to cases such as this in which the judgment is not yet final. (People v. Lopez (2019) 42 Cal.App.5th 337, 341.)
"[W]hen part of a sentence is stricken on review, ... 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.) Here, the trial court did not impose the maximum possible term ab initio, and its comments at sentencing do not reveal whether it would have imposed the middle term had it known the portion of the sentence attributable to the section 667.5, subdivision (b) enhancements would become invalid. Accordingly, a remand to permit the court to exercise its sentencing discretion with respect to the substantive offense is warranted.
DISPOSITION
The sentence in case No. CR-18-005859 is vacated, and the matter is remanded to the trial court with directions to strike the enhancements imposed pursuant to section 667.5, subdivision (b) and to resentence defendant. In all other respects, the judgment in case No. CR-18-005859 and the order revoking mandatory supervision in case No. 4002773 are affirmed.