Opinion
C076187
01-05-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES DARRELL MURPHY, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CM037121)
A Butte County Sheriff's Deputy obtained a warrant to search defendant Charles Darrell Murphy, Jr.'s mobile home and found firearms, ammunition, dozens of Vicodin pills, and a methamphetamine pipe. Probable cause for the search warrant was based, in part, on Murphy's status as a convicted felon, which in turn was based on a Department of Justice (DOJ) rap sheet, which indicated Murphy had been convicted of a felony in 2005. The DOJ rap sheet was wrong in that it failed to indicate that the 2005 conviction had been reduced to a misdemeanor nearly three and one-half years earlier.
Following the denial of Murphy's motion to suppress (Pen. Code, § 1538.5), a jury found him guilty of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 1), three counts of child endangerment (§ 273a, subd. (a); counts 2, 3, & 4), two counts of unlawful firearm activity (§ 29805; counts 6 & 7), unlawful possession of ammunition (§ 30305, subd. (a)(1); count 8), misdemeanor possession of a methamphetamine pipe (Health & Saf. Code, former § 11364.1; count 9), and attempted criminal threat (§§ 664/422; count 10). The trial court suspended imposition of sentence and placed Murphy on five years' formal probation.
Further undesignated statutory references are to the Penal Code.
Murphy's primary contention on appeal is that the trial court erred in denying his motion to suppress because the prosecution failed to meet its burden of proving that the officer's reliance on the defective warrant was objectively reasonable such that the exclusionary rule should not apply. He also asserts that the trial court prejudicially erred in instructing the jury on the crime of attempted criminal threat, and that he is entitled to automatic resentencing under the Safe Neighborhood and Schools Act of 2014 (Proposition 47).
We shall conclude that the trial court erred in denying the motion to suppress. More particularly, we shall conclude that the trial court erroneously placed the burden of establishing objectively reasonable reliance on Murphy rather than the prosecution, and that the prosecution failed to meet its burden. Accordingly, we shall reverse Murphy's convictions for possession of a controlled substance (count 1), child endangerment (counts 2, 3, & 4), unlawful firearm activity (counts 6 & 7), and misdemeanor possession of a methamphetamine pipe (count 9), and remand with directions. We shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2012, Murphy lived in a mobile home with his girlfriend and three young children on a property on Oro-Bangor Highway in Oroville. Murphy shared the property with his father Charles Darrell Murphy, Sr., and half-brother Charles G. Murphy's father lived in a mobile home with his wife and one son. Charles G. lived in an RV with his girlfriend. Charles G. had a young son who sometimes stayed with him.
On August 10, 2012, Murphy's father received a $500 PG&E bill. He was upset and disconnected the power to Murphy's mobile home. Murphy, in turn, disconnected the power to Charles G.'s RV. An argument ensued, and Charles G.'s girlfriend called the police, claiming "to be a victim of a brandishing of a weapon."
Butte County Sheriff's Deputy Jason Piazza responded to the call and contacted Charles G.'s girlfriend, who told him that Murphy's girlfriend had threatened her with some sort of rifle, and that Murphy was "waiving around a log." She also informed Piazza that she had seen Murphy with firearms in the past, but not the one that his girlfriend pointed at her that day.
Murphy allowed Piazza to enter his mobile home to perform a welfare check on his children. Inside the mobile home, Piazza saw a speed loader, a device used to quickly load a firearm, and ammunition sitting on a table just inside the front door.
The following week, Piazza obtained a warrant to search Murphy's mobile home. Details related to the warrant are set forth below. (See pp. 6-7, post.) On August 17, 2012, he arrived at Murphy's home to execute the search warrant. When he arrived, Piazza asked Murphy if there were any firearms or drugs inside the mobile home. Murphy responded, "no," but indicated there was ammunition "throughout" the home. Inside the home, officers found a loaded rifle in between the mattress and the box spring of a bed in the kitchen, a methamphetamine pipe inside a filing cabinet just inside the door in the kitchen area, a loaded .22-caliber Ruger revolver on top of the refrigerator in the kitchen, the speed loader Piazza had seen a week earlier on a table inside the doorway to the mobile home, no less than 100 pieces of various types of ammunition throughout the mobile home, and 61 Vicodin (hydrocodone) pills in a black canister on a shelf in the kitchen. Murphy said that some of the pills came from friends and others through a prescription. Neither a prescription nor a prescription bottle could be located. Murphy was arrested and taken to jail.
The following day, August 18, 2012, Deputy Patrick McNelis was dispatched to Murphy's neighbor's property in response to a 911 call from Charles G. stating that Murphy was threatening his life. Charles G. said that he was hiding with four children at a neighbor's home, and that his girlfriend might already be dead. McNelis contacted Charles G. at the neighbor's property. Charles G. told McNelis that Murphy had been released from jail earlier that day, and when he returned home, he "came at" Charles G. and told him he "better not go to sleep here tonight or [he'd] be sorry." Charles G. said he was scared and ran to the neighbor's property with his son and three children. Charles G. also advised McNelis that Murphy had two assault weapons that the police had failed to find during their previous search of the property.
After speaking with Charles G., McNelis went to the Murphy property and spoke with Murphy's father, who confirmed that Murphy had two assault weapons earlier in the day. Murphy's father explained that one was currently in the shed and the other was in his house and asked McNelis to remove the weapons from the property. Inside the shed, McNelis found a Colt AR-15 with three high-volume magazine clips inside, one of which was loaded. He found a second assault rifle inside Murphy's father's bedroom.
Charles G. and Murphy's father subsequently told McNelis that they did not want to testify in this case, and that they were "intentionally not going to remember what they said." At trial, Charles G. testified that on the date in question, he called 911 because Murphy was upset and Charles G. was scared. He did not recall Murphy making any threats toward him. He told the 911 dispatcher his girlfriend was already dead "to get the police to actually come there." He did not recall ever seeing Murphy with an assault weapon. He said he found the two assault weapons in the woods. Murphy's father likewise denied telling McNelis that Murphy possessed the two assault weapons recovered on August 18, 2012, explaining that when he told McNelis "Charles" brought the assault weapons to the house, he was referring to Charles G., not Charles Murphy. Murphy's father said Charles G. told him he found the weapons in the woods.
In June 2011, prior to the events in question, Murphy was convicted of a misdemeanor battery and was placed on probation for three years. Pursuant to section 29805, he was prohibited from possessing firearms and ammunition for ten years from the date of the conviction.
Following the search of his mobile home on August 17, 2012, Murphy was charged in a consolidated information with possession of a controlled substance (Health & Saf. Code, § 11350; count 1), three counts of child endangerment (§ 273a, subd. (a); counts 2, 3, & 4), two counts of unlawful firearm activity (§ 29805; counts 6 & 7), unlawful possession of ammunition (§ 30305, subd. (a)(1); count 8), and misdemeanor possession of a methamphetamine pipe (Health & Saf. Code, former § 11364.1; count 9).
As a result of the events on August 18, 2012, Murphy was charged with making a criminal threat (§ 422, subd. (a); count 10), two counts of possession of an assault weapon (§ 30605, subd. (a); counts 11 & 12), two counts of unlawful firearm activity (§ 29805; counts 5 & 13), and three counts of misdemeanor child endangerment (§ 273a, subd. (b); counts 14, 15, & 16).
The jury found defendant guilty of all counts related to the August 17, 2012, search (counts 1-4 & 6-9) and acquitted him of all counts related to the events on August 18, 2012, but found him guilty of the lesser included offense of attempted criminal threat in count 10.
DISCUSSION
I
The Trial Court Improperly Denied Murphy's Motion to Suppress
Murphy contends the trial court erred in denying his motion to suppress because "the government failed to meet its burden of proving that Piazza's reliance on the defective warrant was 'objectively reasonable' such that the exclusionary rule should not be applied." We agree the trial court erred in denying the motion to suppress and shall remand the matter for a new hearing.
A. Background
After leaving Murphy's mobile home on August 10, 2012, Piazza asked Butte County Sheriff's dispatch to run Murphy's DOJ rap sheet. Piazza reviewed a printout of the rap sheet, which listed a 2005 felony conviction for violating former section 11377 of the Health and Safety Code (unlawful possession of a controlled substance). Based on that prior felony conviction and his earlier observation of a speed loader and ammunition inside Murphy's mobile home, Piazza concluded there was probable cause to believe Murphy was in violation of sections 29800, subdivision (a)(1) (felon in possession of a firearm) and 30305, subdivision (a) (felon in possession of ammunition) and obtained a warrant to search Murphy's mobile home for "[a]ny and all firearms and ammunition deemed to be illegally possessed, [and] any indicia showing [Murphy] is the tenant or resident of the subject mobile home." The search warrant, affidavit, and statement of probable cause were reviewed and approved as to form by Deputy District Attorney (DDA) Orin Brent Redelsperger.
Neither the search warrant affidavit nor statement of probable cause mentioned Murphy's 2011 misdemeanor conviction.
When Piazza arrived at the Murphy property on August 17, 2012, to execute the warrant, he contacted Murphy, who advised him that his felony conviction had been reduced to a misdemeanor. Piazza attempted to verify Murphy's claim by reviewing the DOJ rap sheet. The rap sheet did not indicate that the felony conviction had been reduced to a misdemeanor, and Piazza proceeded to search Murphy's mobile home. As detailed above, officers recovered two loaded firearms, a methamphetamine pipe, a speed loader, ammunition, and dozens of Vicodin pills.
The rap sheet itself is not part of the record. Piazza testified at the preliminary hearing that the rap sheet did not indicate that the felony conviction had been reduced.
After executing the search warrant, Piazza reviewed the Butte County Superior Court's online records, which showed that Murphy's 2005 felony conviction had been reduced to a misdemeanor. He did not do so prior to conducting the search because "[w]e were on [the] scene."
Murphy's 2005 conviction was reduced to a misdemeanor pursuant to section 17, subdivision (b). Accordingly the conviction is "regarded as a misdemeanor 'for all purposes[,]' . . . and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring." (Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477, 1483.)
Murphy moved to suppress the evidence, including the "controlled substances, firearms, and paraphernalia" found in his mobile home, pursuant to section 1538.5, subdivision (a) on the ground that the warrant was issued without probable cause. Murphy argued that probable cause was lacking because the 2005 felony conviction referenced by Piazza in his statement of probable cause had been reduced to a misdemeanor in February 2009, over three years before the statement of probable cause was drafted.
In their written opposition to the motion, the People did not dispute that Murphy's felony conviction had been reduced to a misdemeanor. Rather, they argued that a search warrant is presumed valid, and that the burden was on Murphy to establish its invalidity. The People also asserted that the exclusionary rule did not apply because "[a]pproval for, and execution of the search warrant, was based upon good faith reliance on the facts known at the time."
At the hearing on the motion, the trial court took judicial notice of the court file in Butte County Superior Court case No. CM022496, which showed Murphy's 2005 felony conviction had been reduced to a misdemeanor on February 26, 2009. There was no dispute that Piazza obtained his information about the 2005 felony conviction from a rap sheet that was generated by a DOJ database relied on by law enforcement.
We reject Murphy's assertion that no evidence was presented as to "what exactly the deputy was relying on in his drafting of the warrant." While Piazza referred to the document as "a California History printout" in his statement of probable cause, at the preliminary hearing he clarified that he relied on "a Department of Justice rap sheet." Murphy's motion to suppress was based, in part, on the preliminary hearing transcript.
The prosecutor advised the trial court that "the sole issue" is whether Piazza "reasonably relied" on the DOJ rap sheet, and argued that "[t]he People have shown in our moving papers there's . . . the good faith reliance in [United States v.] Leon [(1984) 468 U.S. 897 ]." No witnesses testified at the hearing on the motion and no additional evidence was introduced.
The trial court denied Murphy's motion to suppress. The court began its analysis with the following summation of the applicable law: "The Leon good faith exception, as we all know, allows the introduction of evidence obtained under a defective warrant issued by a neutral and detached magistrate if the officer or officers [who] executed the warrant, acted in the reasonable good faith belief that the warrant was valid. [¶] The definition of good faith has been defined as objectively reasonable reliance. . . . [¶] Then there are cases, including Leon, which state that the good faith exception . . . doesn't apply when the search warrant affidavit includes material false statements that the affiant made recklessly or knowingly." The court then went on to find that the "good faith" exception to the exclusionary rule applies in this case because "there's nothing that tells me that Officer Piazza acted with reckless indifference or whatever the standard is. The standard being, he had a rap sheet that had that information. I think he was entitled to rely on it."
B. Applicable Law
"The Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' but 'contains no provision expressly precluding the use of evidence obtained in violation of its commands,' [citation]." (Herring v. United States (2009) 555 U.S. 135, 139 [172 L.Ed.2d 496, 503] (Herring).) Nonetheless, decisions of the United States Supreme Court "establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial." (Ibid.) The purpose of the exclusionary rule is to deter police misconduct. (Id. at pp. 139-140.) But not every Fourth Amendment violation warrants exclusion. (Herring, at p. 140.)
In Leon, the United States Supreme Court held that where police officers act in objectively reasonable reliance on a search warrant that is issued by a detached and neutral magistrate but is later found to be invalid for lack of probable cause, the deterrent effect of exclusion is insufficient to warrant the exclusionary rule's application. (United States v. Leon, supra, 468 U.S. at p. 900 (Leon).) In doing so, the court cautioned that "[r]eferences to 'officer' in this opinion should not be read too narrowly. It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination." (Id. at p. 923, fn. 24; see also Herring, supra, 555 U.S. at p. 140 ["In analyzing the applicability of the [exclusionary] rule, Leon admonished that we must consider the actions of all the police officers involved."].)
In cases such as this one, where an officer relies on information from a database that later is determined to be inaccurate, the United States Supreme Court has focused its analysis on the source of the error and the culpability of those responsible.
In Arizona v. Evans (1995) 514 U.S. 1 (Evans), the court held that "[a]pplication of the Leon framework supports a categorical exception to the exclusionary rule for clerical errors of court employees." (Id. at p. 16.) There, an officer arrested and searched a defendant based on information in a computer database that indicated there was an outstanding warrant for his arrest. (Id. at p. 4.) During the search, the officer discovered a bag of marijuana. (Ibid.) When the police notified the justice court that they had arrested the defendant, the justice court discovered that the arrest warrant previously had been quashed. (Ibid.) At the hearing on the defendant's motion to suppress, the chief clerk of the justice court testified that there was no indication in the defendant's file that a clerk had notified the sheriff's office that the arrest warrant had been quashed as was the court's practice, and a record's clerk from the sheriff's office testified that the sheriff's office had no record of being so notified. (Id. at pp. 4-5.) According to the chief clerk, this type of error occurred once every three or four years. (Id. at p. 15.) The Evans court held that the exclusionary rule should not apply because (1) "[t]he exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees" (2) there was "no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion" and (3) exclusion of evidence would not "have a significant effect on court employees responsible for informing the police that a warrant has been quashed" because they are not "adjuncts to the law enforcement team" and "have no stake in the outcome of particular criminal prosecutions." (Id. at pp. 14-15). The court also observed that "[t]here is no indication that the arresting officer was not acting objectively reasonably when he relied upon the police computer record," noting the chief clerk's testimony that this type of error occurred once every three to four years. (Id. at pp. 15-16.)
In Herring, the United State Supreme Court ruled that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (555 U.S. at p. 144.) In that case, an officer arrested the defendant after being advised that there was an active arrest warrant for his arrest in neighboring Dale County. (Id. at p. 137.) A search incident to arrest revealed methamphetamine in the defendant's pocket and a pistol in his vehicle. (Ibid.) Within minutes of the arrest, it was discovered that the warrant had been recalled five months earlier. (Id. at pp. 137-138.) There was no evidence that errors in Dale County's system were routine or widespread. (Id. at p. 147.) The arresting officer testified that he had never had reason to question information about a Dale County warrant, and both warrant clerks testified that they count not remember any similar miscommunications ever happening on their watch. (Ibid.) The Herring court concluded that the exclusionary rule did not apply, reasoning that "when police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' " (Id. at pp. 147-148.)
"In reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings, express or implied, where supported by substantial evidence. [Citation.] And in determining whether, on the facts so found, the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, we exercise our independent judgment." (People v. Simon (2016) 1 Cal.5th 98, 120.)
C. Analysis
There is no dispute that probable cause for the search warrant was based, in part, on Murphy's status as a convicted felon, which in turn was based on a DOJ rap sheet, which indicated Murphy had been convicted of a felony in 2005. There is also no dispute that the DOJ rap sheet was wrong in that it failed to indicate that the 2005 conviction had been reduced to a misdemeanor nearly three and one-half years earlier. The salient issue here is the application of the exclusionary rule. The resolution of that issue turns on whether Piazza's reliance on the DOJ rap sheet was objectively reasonable, and whether the error was the result of sufficiently culpable police misconduct. (Evans, supra, 514 U.S. at pp. 14-16; Herring, supra, 555 U.S. at pp. 147-148.) Even if Piazza's reliance was objectively reasonably, the exclusionary rule may still apply if the error was the result of deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence, on the part of the police. (Evans, supra, 514 U.S. at pp. 14-16; Herring, supra, 555 U.S. at pp. 147-148.)
Before we address these questions, we consider Murphy's contention that the trial court erred by placing the burden on him to prove that Piazza's reliance on the DOJ rap sheet was objectively reasonable. The trial court found the good faith exception to the exclusionary rule applied because "there's nothing that tells me that Officer Piazza acted with reckless indifference or whatever the standard is. The standard being, he had a rap sheet that had that information. I think he was entitled to rely on it." The trial court's statement suggests that it believed that it was incumbent upon Murphy to establish that Piazza's reliance was not reasonable. That was error. "Where, as here, the prosecution invokes the good faith exception, the government has 'the burden . . . to prove that exclusion of the evidence is not necessary because of [that] exception.' [Citations.] Thus, 'the government has the burden of establishing "objectively reasonable" reliance' under Leon. [Citation.] Establishing that the source of the error acted objectively reasonably is part of that burden." (People v. Willis (2002) 28 Cal.4th 22, 36 (Willis); see also Leon, supra, 468 U.S. at p. 924.)
The People do not dispute that the trial court erred in placing the burden of proving that Piazza's reliance on the rap sheet was objectively reasonable on Murphy. Rather, they appear to assert that the record supports a finding that "Piazza reasonably relied upon information in the database of the Department of Justice" based on Piazza's preliminary hearing testimony that he "authored [the search warrant] in good faith, but later found out that that charge had been reduced to a misdemeanor." Piazza's conclusory statement that he authored the search warrant in good faith is insufficient. The issue is not Piazza's subjective awareness. (Herring, supra, 555 U.S. at p. 145.) The test is an objective one (ibid.), and no evidence was presented that would support a finding that Piazza's reliance on the rap sheet was objectively reasonable. Neither Piazza nor anyone familiar with the DOJ database in question testified as to its reliability. The prosecutor's statements to that effect at the hearing on the motion to suppress are not evidence. In contrast, in Herring, the officer who relied on the erroneous information testified that "he had never had reason to question information about a Dale County warrant," and the warrant clerks involved "could remember no similar miscommunication ever happening on their watch." (Herring, supra, 555 U.S. at p. 147.) No such evidence was presented in this case. Absent such evidence, the trial court could not reasonably conclude that that Piazza's reliance on the DOJ rap sheet was objectively reasonable.
Moreover, the trial court limited its consideration to Piazza's objective reasonableness and failed to consider the source of the error. Under the circumstances of this case, the trial court was required to consider the source of the error, and if the source was a law enforcement officer or an adjunct thereto, whether the error was the result of isolated negligence or something more. (Herring, supra, 555 U.S. at pp. 146-147; see also Willis, supra, 28 Cal.4th at p. 38-39 [exclusionary rule may apply where the source of the error is an adjunct to the law enforcement team].)
The People claim that the exclusionary rule does not apply because the source of the error may have been court personnel. While they are correct that the exclusionary rule does not apply where court personnel are responsible for the error (Evans, supra, 514 U.S. at p. 15), there is no evidence that court personnel were responsible for the error at issue at issue here.
The People rely on section 13151, which requires all superior courts to notify DOJ about the initial disposition of a case, as well as any subsequent actions. They then speculate that "the error may have resulted from a failure of the superior court to update the information by notifying the Department of Justice of a subsequent disposition in appellant's 2005 felony case, i.e., that the 2005 felony conviction had been reduced to a misdemeanor." (Italics added.) While it is possible that court personnel were responsible for the error, it is at least equally possible that court personnel notified DOJ about the reduction of Murphy's conviction and that someone at DOJ failed to enter that information into the database. In any event, there is no way to determine the source of the error in this case on the record before us because no evidence was introduced on that issue.
The record reflects that neither the parties nor the trial court considered anything beyond whether Piazza himself reasonably relied on the DOJ rap sheet under Leon. Inexplicably, neither party cited, much less discussed, Herring or any other United States Supreme Court cases that address the applicability of the good faith exception to the exclusionary rule decided after Leon. As a result, the trial court was not presented with the legal authority that bore directly on the issue before it. While the parties discuss the relevant authorities in their briefing on appeal, we are hampered in our review by the sparse record.
We directed the parties to file supplemental letter briefs addressing the appropriate remedy should we find that the People failed to meet their burden of establishing a good faith exception to the exclusionary rule. Citing Franks v. Delaware (1978) 438 U.S. 154 , the People claimed for the first time that they were not required to establish a good faith exception to the exclusionary rule because Murphy failed to make a substantial preliminary showing that a false statement knowingly and intentionally made or with reckless disregard for the truth, was included by Piazza in the warrant affidavit. The People erroneously conflate Franks and Leon, supra, 468 U.S. 897. It is not an either-or situation. (People v. Maestas (1988) 204 Cal.App.3d 1208, 1216 ["[I]n cases such as this one in which it is alleged that the affidavit contained material misstatements and omissions, Leon and Franks may both apply."].) "[W]hereas the critical issue at the Franks hearing is whether the magistrate was actually misled by an intentional or reckless misstatement or omission, suppression remains appropriate under Leon if, entirely apart from whether dishonest or reckless misrepresentations actually misled the magistrate, the officer 'could not have harbored an objectively reasonable belief in the existence of probable cause.' " (Ibid.) Assuming for argument's sake that Murphy failed to make a substantial preliminary showing that that a false statement knowingly and intentionally made or with reckless disregard for the truth, was included by Piazza in the warrant affidavit, that does not relieve the People of their burden to establish the good faith exception to the exclusionary rule applies where, as here, there is no dispute that the statement of probable cause contained erroneous information that was material to the finding of probable cause, and the People invoked the good faith exception in their opposition to Murphy's motion to suppress.
We find the denial of the Murphy's motion to suppress was error. The trial court erroneously placed the burden of proving that the good faith exception did not apply on Murphy, the record does not support a finding that Piazza's reliance on the warrant was objectively reasonable, and the trial court was not presented with the relevant legal authority and thus failed to address the source of the error. Accordingly, we shall reverse defendant's convictions that stem from the search (counts 1-4, 6-7, & 9) and remand the matter for a new hearing on Murphy's motion to suppress.
There is evidence independent of the search to support Murphy's conviction for unlawful possession of ammunition (count 8), namely Piazza's observation of ammunition inside Murphy's mobile home during a consensual welfare check on August 10, 2012, and Murphy's 2011 misdemeanor conviction prohibiting him from possessing ammunition for ten years. Accordingly, we shall not reverse his conviction on count 8.
II
The Trial Court's Failure to Instruct the Jury on the Objective Reasonableness Element of
Attempted Assault Was Harmless Beyond a Reasonable Doubt
Murphy next contends that the trial court erred in failing to instruct the jury on an element of attempted criminal threat. The People concede the error, but assert that it was harmless beyond a reasonable doubt. We agree with the People.
A. Background
Murphy was charged in count 10 with making a criminal threat against his brother Charles G. The trial court instructed the jury in the language of CALCRIM No. 1300 as follows: "To prove that the defendant is guilty of [making a criminal threat], the People must prove that, one, the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Charles G.; two, the defendant made the threat orally; three, the defendant intended that the statement be understood as a threat; four, the threat was so clear, immediate, unconditional, and specific that it communicated to Charles G. a serious intention and the immediate prospect that the threat would be carried out; five, the threat actually caused Charles G. to be in sustained fear for his own safety or for the safety of his immediate family; and, six, Charles G.'s fear was reasonable under the circumstances."
The trial court then instructed the jury on the lesser included offense of attempted criminal threat pursuant to the then-current version of CALCRIM No. 460 in pertinent part as follows: "To prove that the defendant is guilty of attempted criminal threat in violation of Penal Code Section 664/422, the People must prove that . . . [¶] . . . one, the defendant took a direct but ineffective step toward committing a criminal threat in violation of Penal Code Section 422; and two, the defendant intended to commit a criminal threat in violation of Penal Code Section 422." The court then defined "direct step" and instructed the jury to refer to separate instructions to decide whether defendant intended to commit a criminal threat. The jury acquitted defendant of making a criminal threat but found him guilty of attempt.
B. Applicable Law
A trial court has a duty to instruct sua sponte on the general principles of law applicable to the case, including lesser included offenses. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 154; People v. Taylor (2010) 48 Cal.4th 574, 623.) "Under state law, instructional error that withdraws an element of a crime from the jury's consideration is harmless if there is 'no reasonable probability that the outcome of defendant's trial would have been different had the trial court properly instructed the jury.' [Citations.] Under federal law, the 'Fifth Amendment right to due process and Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.' [Citations.] Accordingly, a trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209; Neder v. United States (1999) 527 U.S. 1, 8-16 ; People v. Chandler (2014) 60 Cal.4th 508, 525 (Chandler).)
The crime of attempted criminal threat includes a reasonableness element. (Chandler, supra, 60 Cal.4th at p. 525; People v. Jackson (2009) 178 Cal.App.4th 590, 596-597 (Jackson).) "[T]he offense of attempted criminal threat . . . require[s] proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear. Accordingly, when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, at p. 525.)
As in this case, the defendant in Jackson was acquitted of the substantive offense of making a criminal threat and convicted of attempt. (Jackson, supra, 178 Cal.App.4th at p. 593.) On appeal, he claimed the trial court erred by failing to instruct the jury sua sponte that, "in order to find him guilty of attempted criminal threat, it must find that 'it would have been reasonable for a person to have suffered sustained fear as a result of the threat under the circumstances of this case.' " (Id. at p. 595.) The People responded that, when a defendant has done everything he needs to do to complete the crime of criminal threat, but he has not achieved his intended result, he has committed an attempted criminal threat regardless of whether the intended threat reasonably could have caused the target to suffer sustained fear. (Id. at pp. 595-596.) The Jackson court rejected the People's argument and held that the jury instructions were erroneous because the reasonableness element was included only in the substantive offense instruction (as here) and not in the attempt instruction. (Id. at pp. 596-597, 599-600.)
In holding that the error was prejudicial, the court explained: "In finding defendant not guilty of the completed crime but guilty of attempt, the jury must have found that defendant made the . . . statements [attributed to him] and that he intended them to be taken as threats but that one or both of the last two elements of the completed crime was missing, namely that [the victims] did not suffer sustained fear or that their fear was unreasonable under the circumstances. The instruction allowed the jury to find defendant guilty of attempted criminal threats under either of these factual scenarios. And the evidence would support either scenario. The jury might not have believed [the victims] when they stated they actually feared for their lives. Or, the jury might have concluded, since [the victims] were safely inside the house with a telephone to call the police while defendant sat out front, or since defendant's threats were so outlandish, that defendant's statements could not reasonably have caused the victims to suffer sustained fear. The latter scenario is legally insufficient to support conviction of an attempted criminal threat and the former scenario is sufficient only upon finding that a reasonable person could have suffered fear in those circumstances, something the jury was not asked to decide." (Jackson, supra, 178 Cal.App.4th at p. 600.)
After defendant's trial in this case, our Supreme Court decided Chandler, which held, in accord with Jackson, that "when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525.) Unlike Jackson, however, the court found reversal was not required because "no reasonable juror could have failed to find defendant's threats sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, at p. 525.) The court reasoned, "Neither the prosecution nor the defense ever suggested that defendant could be convicted of attempted criminal threat based solely on his subjective intent to threaten. Nor does the evidence suggest that the jury convicted defendant on that basis, since defendant expressly threatened to kill both victims. Moreover, the defense theory at trial did not contest the reasonableness of the victims' fear. Instead, defendant argued that there was reasonable doubt as to whether he made any of the alleged threats and that the threats, if made, did not cause actual or sustained fear." (Ibid.) The court further observed that unlike Jackson, the defendant in Chandler "made explicit threats that he was going to kill each of [the victims], and defendant made the threats while face-to-face with the victims . . . ." (Id. at p. 526.)
In February 2015, following the court's decision in Chandler, CALCRIM No. 460 was modified to conform to the holding in Chandler by adding a third element to prove attempted criminal threat, that "[t]he intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Bench Notes to CALCRIM No. 460 (2015) p. 204; Chandler, supra, 60 Cal.4th at p. 525.)
C. Analysis
There is no dispute that the jury should have been, but was not, instructed that the offense of attempted criminal threat "requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, 60 Cal.4th at p. 525.) Reversal, however, is not warranted if the error was harmless beyond a reasonable doubt. (Ibid.) Here, the evidence shows beyond a reasonable doubt that Murphy's threat was sufficient to cause a reasonable person to be in sustained fear. Accordingly, the failure to instruct the jury on that element was harmless.
As was the case in Jackson, in finding Murphy not guilty of the crime of making a criminal threat but guilty of attempt, the jury must have found that Murphy made the "you'd better not go to sleep here tonight or you'll be sorry" statement and that he intended it to be taken as a threat, but that one or both of the last two elements of the completed crime was missing, namely that Charles G. did not suffer sustained fear or that his fear was unreasonable under the circumstances. (Jackson, supra, 178 Cal.App.4th at p. 600.) Unlike, Jackson, however, the evidence in this case does not support the second factual scenario--that Charles G.'s fear was unreasonable under the circumstances. (Ibid.) In Jackson, the court found the failure to instruct the jury that the victims' fear must be reasonable under the circumstances was not harmless beyond a reasonable doubt because "the jury might have concluded, since [the victims] were safely inside the house with a telephone to call the police while defendant sat out front, or since defendant's threats were so outlandish, that defendant's statements could not reasonably have caused the victims to suffer sustained fear." (Ibid.) By contrast, here, the threat was made face-to-face and was not so outlandish that a juror could conclude that the threat could not reasonably have caused Charles G. to suffer sustained fear. While Murphy did not explicitly state that he was going to kill or cause great bodily injury to Charles G., the implication was clear. Murphy, who had just been released from jail and was upset, confronted Charles G. at the Murphy property and told him he "better not go to sleep here tonight or you'll be sorry." Because no reasonable juror could have failed to find Murphy's threat was insufficient under the circumstances to cause a reasonable person to be in sustained fear, the trial court's error in failing to instruct the jury on the reasonableness element was harmless beyond a reasonable doubt. (Chandler, supra, 60 Cal.4th at p. 525.)
III
Proposition 47 Does Not Empower This Court to Reduce Murphy's Felony Conviction
for Possessing a Controlled Substance
Murphy claims he is entitled to "automatic, non-discretionary resentencing" under the Safe Neighborhood and Schools Act of 2014 (Proposition 47) and that this court should reduce of his felony conviction for possessing a controlled substance (Health & Saf. Code, § 11350) to misdemeanor. He is mistaken.
Voters approved Proposition 47 on November 4, 2014. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 920 (Scarbrough).) Proposition 47 added former section 1170.18 to the Penal Code, which permits people convicted of certain drug and theft offenses sentenced as felonies to seek recall and resentencing as misdemeanors from the trial court. (Scarbrough, at p. 920.)
Former section 1170.18, subdivision (a) provided in pertinent part: "A person currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with [enumerated sections, including Health and Safety Code section 11350], as those sections have been amended or added by this act." A person seeking relief under this section must file his or her petition "within three years after the effective date of the act that added this section or at a later date upon a showing of good cause." (Former § 1170.18, subd. (j).)
Nothing in the language of former section 1170.18 provided for an automatic resentencing of those convicted of felonies before passage of Proposition 47. To the contrary, subdivision (b) of that section states that a defendant must affirmatively seek relief and the trial court is to evaluate and weigh numerous factors before exercising its discretion.
Murphy claims that section "1170.18 is not an available avenue of relief" for him because it "is reserved for those who are either currently serving a sentence or have already completed their sentence," and does not include those who are on probation. We agree with our colleagues in Division One of the First District Court of Appeal who held that persons on probation for a felony conviction are "currently serving a sentence" for purposes of former section 1170.18, subdivision (a). (People v. Davis (2016) 246 Cal.App.4th 127, 132, 133, 142-143, review granted July 13, 2016, S234324 (Davis). (See Cal. Rules of Court, rule 8.1105(e)(1)(B).)
In granting review in Davis, supra, 246 Cal.App.4th 127, our Supreme Court deferred further action pending its decision in People v. DeHoyos, review granted September 30, 2015, S228230. The issue presented in DeHoyos involves the retroactivity of Proposition 47. DeHoyos does not address whether persons on probation for a felony conviction are "currently serving a sentencing" for purposes of former section 1170.18, subdivision (a).
Contrary to Murphy's assertion, In re Estrada (1965) 63 Cal.2d 740 does not mandate a retroactive application of Proposition 47 and automatic resentencing. As the Court of Appeal explained in People v. Yearwood (2013) 213 Cal.App.4th 161, which addressed Proposition 36, Estrada does not apply when the voters have established a sole remedy for resentencing as set forth in the statute. (Yearwood, at p. 172.) In Scarbrough, we found the reasoning and analysis in Yearwood equally applicable to Proposition 47. (Scarbrough, supra, 240 Cal.App.4th at p. 925.) In Proposition 47, the voters established a sole remedy, set forth in former section 1170.18, which requires that the defendant petition for recall and resentencing in the trial court, which resentencing is at the trial court's discretion; the clear language of the statute does not provide for immediate relief in the form of an automatic retroactive application of the provisions of Proposition 47. (Former § 1170.18, subds. (a) & (b); Scarbrough, supra, 240 Cal.App.4th at p. 928.)
Murphy's claim that he is entitled automatic resentencing under Proposition 47 fails.
IV
Correction to Sentencing Minutes
Finally, Murphy points out that the sentencing minutes erroneously reflect that he was convicted of violating Health and Safety Code section 11370.1, when in fact, he was convicted of violating section 11350, subdivision (a) of that section. We shall direct the trial court to correct its November 7, 2013, sentencing minutes to reflect the jury convicted Murphy in count 1 of violating Health and Safety Code section 11350, subdivision (a). (People v. Mitchell (2001) 26 Cal.4th 181, 185 [court has authority to correct clerical error to make the records reflect the true facts].)
DISPOSITION
Murphy's convictions for possession of a controlled substance (count 1), child endangerment (counts 2, 3, & 4), unlawful firearm activity (counts 6 & 7), and misdemeanor possession of a methamphetamine pipe (count 9) are reversed. The matter is remanded to the trial court with directions to reverse the order denying Murphy's motion to suppress, and grant Murphy a new hearing on his motion to suppress so that the trial court, as the initial fact finder, can weigh all the facts under the appropriate test, consistent with this opinion, unless the People elect to dismiss counts 1-4, 6-7, and 9 with prejudice. The judgment otherwise is affirmed. The trial court is directed to correct its minutes consistent with this opinion.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Robie, J. /s/_________
Hoch, J.