Opinion
C097268
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN TAYLOR WALSH, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 21FE015297
BOULWARE EURIE, J.
Defendant Justin Taylor Walsh appeals from the judgment imposed following his conviction for robbery (Pen. Code, § 211) and false imprisonment by violence (§ 236) and true findings that he personally used a deadly or dangerous weapon during the commission of both offenses, a baseball bat (§ 12022, subd. (b)(1)). On appeal, Walsh contends that the personal use enhancements must be reversed because the trial court prejudicially instructed the jury with an incorrect legal theory. The People agree the trial court erred in instructing the jury as to the personal use enhancements, but contend the error was harmless. We conclude the instructional error on the personal use enhancements was prejudicial. Accordingly, we will reverse the personal use enhancements, vacate the sentence, and remand for further proceedings.
Undesignated statutory references are to the Penal Code.
BACKGROUND
K.C. testified that in May 2021, Walsh wanted to cash a check but did not have any identification. K.C., who did have identification, tried to cash it for him in exchange for part of the money as payment. However, K.C. was unable to cash the check and returned it to Walsh.
K.C. testified that at approximately 3:00 a.m. one morning in September 2021, he was making sandwiches in a park bathroom when Walsh walked up to him with a baseball bat. Walsh held the bat by his head "like a batter who was up to bat ready to hit a ball" and blocked the bathroom exit. Walsh said that he was going to "beat [his] ass" and "had told himself that he was coming . . . to just beat [his] ass." Walsh accused K.C. of cashing the check and called him a "rip-off" and a "thief." K.C. denied cashing the check and pleaded for Walsh to not hurt him.
Walsh demanded money from K.C., so K.C. gave him his wallet, which contained his bank cards, Social Security card, and identification. When K.C. handed Walsh the wallet, Walsh held the bat in his right hand and flinched at K.C. with the bat like he was going to hit him. K.C. cowered, trying to avoid being hit. Walsh also took K.C.'s cell phone. Then, Walsh left. K.C. testified that from the moment he saw Walsh with the bat in his hand, he felt scared for his safety and his life.
An eyewitness, D.K., testified that she and her son were sleeping in their vehicle in the parking lot at the park that night. D.K. woke up when she heard "[t]he wails of a man pleading for mercy." She saw a man blocking K.C. from leaving the bathroom and moving his right arm, which held a baseball bat, up and down. D.K. said the arm holding the bat was first at the man's waist, then up to his shoulder and above his ear, and then back down. D.K. saw the man swing the bat once when he entered the bathroom. During the incident, D.K. feared for K.C.'s life.
A jury found Walsh guilty of second degree robbery (§ 211) and false imprisonment by violence (§ 236) and found true the allegations that Walsh personally used a deadly or dangerous weapon during the commission of both offenses (§ 12022, subd. (b)(1)). During bifurcated proceedings, the jury found true the following aggravating circumstances: the crime involved great violence, great bodily harm, threats of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)) and Walsh was armed with or used a weapon (id., rule 4.421(a)(2)). The jury found the following aggravating circumstances not true: the crime involved an attempted or actual taking or damage of great monetary value (id., rule 4.421(a)(9)) and Walsh engaged in violent conduct that indicates a serious danger to society (id., rule 4.421(b)(1)).
At sentencing, the trial court imposed the middle term of three years for robbery and one year for its attendant personal use of a deadly or dangerous weapon enhancement. The trial court also imposed the middle term of two years for false imprisonment and one year for its attendant personal use of a deadly or dangerous weapon enhancement, and stayed the terms pursuant to section 654. Walsh filed a timely notice of appeal with this court in November 2022. His opening brief was filed in September 2023, and this case became fully briefed on January 17, 2024.
DISCUSSION
Walsh contends the true findings on the personal use of a deadly weapon allegations must be reversed because the trial court instructed the jury with a legally incorrect theory. Specifically, the instruction given allowed the jury to find the allegations true if it concluded either the weapon used was dangerous or was used in such a way as to make it dangerous, providing alternative theories to find a baseball bat, which is not an inherently dangerous weapon, is dangerous without considering how it was used. The People agree the instruction was given in error, but argue the error was harmless.
A. Additional Background
The trial court instructed the jury on the personal use of a dangerous or deadly weapon with pattern instruction CALCRIM No. 3145. As relevant, the court instructed: "A deadly or dangerous weapon is any object, instrument or weapon that is dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed and where the person who possessed the object was going and whether the object was changed from its standard form and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Someone personally uses a deadly or dangerous weapon if he intentionally displays the weapon in a menacing manner."
In closing argument, the People argued both legal theories. The People stated: "A deadly or dangerous weapon is any object, instrument or weapon that is inherently deadly or dangerous.... [¶] A baseball bat is a dangerous weapon. A baseball bat when drawn at the ready and used to threaten another individual is a deadly weapon. And holding the bat at the ready, up in a swinger's position, is displaying it in a menacing manner, displaying it in a threatening way, displaying it for the purpose of threatening the victim on the other end of that bat." During the People's argument, a slideshow stated, "A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous" and asserted the personal use of a deadly weapon allegations were thus true.
The trial court interrupted the People's closing argument and instructed the jury as follows: "A deadly or dangerous weapon is any object, instrument or weapon that is dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] That is your definitional section. It does not include reference to the weapon being inherently deadly. So, please, disregard that. Don't use it. Use that which is provided to you in the instructions, specifically characterized in the second paragraph and continues on in the paragraph after."
The second paragraph in the jury instructions given to the jury stated: "A deadly or dangerous weapon is any object, instrument, or weapon that is dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
B. Analysis
An"' "inherently deadly or dangerous" '" weapon is a term of art describing objects that are deadly or dangerous in"' "the ordinary use for which they are designed," '" that is, weapons that have no practical nondeadly purpose. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 318-319.) A baseball bat is not a weapon with no practical nondeadly purpose. The ordinary use for which it is designed is to play a game. Therefore, it is not a dangerous or deadly weapon, unless it is used in a manner capable of causing and likely to cause death or great bodily injury. (See People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat).)
While the trial court stated that the instruction did not include the word "inherently," the trial court's oral and written instructions still allowed the jury to convict Walsh on the personal use of a deadly weapon allegations based on a finding that the baseball bat was "dangerous" in its ordinary use, rather than a finding that Walsh used the baseball bat in a way that was capable of causing and likely to cause death or great bodily injury. Because, as a matter of law, a bat is not a dangerous weapon in its ordinary use, we agree with the parties that the trial court erred by "presenting the jury with two theories by which it could find the [baseball bat] a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct." (Aledamat, supra, 8 Cal.5th at pp. 6-7.) Thus, the issue in this case is whether this error was prejudicial.
If a trial court instructs the jury on alternative theories of guilt, one of which is valid and one of which is "legally inadequate," we evaluate prejudice under the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. (Aledamat, supra, 8 Cal.5th at p. 3.) We "must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt." (Ibid.) The question is not whether we believe it clear beyond a reasonable doubt that the defendant is guilty under the legally correct theory, but whether we can say, beyond a reasonable doubt, that the legally incorrect jury instruction did not taint the actual jury verdict. (People v. Thompkins (2020) 50 Cal.App.5th 365, 399.) Among the ways in which we may assess the error is by reviewing what the jury necessarily found, as well as the parties' arguments, including whether the prosecutor relied on the invalid legal theory in closing arguments. (People v. Baratang (2020) 56 Cal.App.5th 252, 263264.)
We cannot conclude this error was harmless beyond a reasonable doubt. During closing argument, the People argued that a true finding of the personal use allegations could be based on a finding that the baseball bat was inherently deadly or dangerous. Further, the People explicitly stated that a baseball bat was "a dangerous weapon." The instruction as given permitted the jury to find that the bat was a deadly or dangerous weapon, without considering how the baseball bat was used. Thus, the trial court's instruction could have still tainted the actual jury verdict. The aggravating circumstances that the jury found true do not reflect whether it found that Walsh used the bat in a way that was capable of causing and likely to cause death or great bodily injury. Nor do the underlying offenses that the jury found Walsh guilty of shed any light on the matter. (CALCRIM Nos. 1600, 1240.)
Further, there was conflicting testimony on how Walsh used the baseball bat. D.K. testified that Walsh swung the bat at K.C. K.C. testified that Walsh only held the bat up and flinched as though he was going to swing. Based on K.C.'s testimony, the jury could have found that the bat was not used in a way that was capable of causing and likely to cause death or great bodily injury.
With the instructional error, the jury could have disbelieved D.K.'s testimony as to how the baseball bat was used yet still found the allegations true, based on the lack of clarity as to whether the baseball bat was a dangerous weapon. Given the factual uncertainty as to whether Walsh used the bat in a manner likely to cause serious physical injury, we cannot say beyond a reasonable doubt that a properly instructed jury would have found that Walsh necessarily used the bat in a deadly or dangerous manner. (People v. Stutelberg, supra, 29 Cal.App.5th at pp. 322-323.) Accordingly, we must reverse the personal use of a deadly weapon enhancements.
DISPOSITION
The convictions for robbery and false imprisonment by violence are affirmed. The personal use of a deadly weapon enhancements are reversed. The sentence is vacated. The matter is remanded for further proceedings to allow the prosecution to retry Walsh on the personal use of a deadly or dangerous weapon allegations, if it elects to do so, and for resentencing. Upon resentencing, the court may not impose a sentence greater than the one originally imposed, and an amended abstract shall be issued and sent to the Department of Corrections and Rehabilitation.
We concur:
DUARTE, ACTING P. J., RENNER, J.