Opinion
4 G027398
04-08-2002
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ALLEN CHENZE, Defendant and Appellant. G027398 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE Filed
THE PEOPLE, Plaintiff and Respondent,
v.
STEVEN ALLEN CHENZE, Defendant and Appellant.
G027398
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 3/14/02
4/8/02
(Super. Ct. No. 98NF3118)
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting and Ilana R. Butler, Deputy Attorneys General, for Plaintiff and Respondent.
O P I N I O N
OLEARY, J.
Steven Allen Chenze appeals his felony conviction for battery on a custodial officer under Penal Code section 243.1.(FN1) He contends section 243.1 was impliedly repealed by an amendment to section 243, which provides that a battery on a custodial officer is a misdemeanor ( 243, subd. (b)); but if injury is inflicted, it may be sentenced as a misdemeanor or a felony ( 243, subd. (c)(1)). He also complains the evidence was insufficient, the jury instructions were inadequate, and his counsel was incompetent. We reject his contentions and affirm.
Chenze was arrested on drug charges and held at the Anaheim Police Department jail. While being transported to court, he "head-butted" one of the custodial officers.
The victim, Donald Briggs, did not testify at trial because he was out of town on vacation. Andrew Gaydos, another custodial officer at the jail, testified for the prosecution. Gaydos was the transportation officer responsible for getting Chenze to court. He testified that Briggs was also a custodial officer at the Anaheim jail and their duties involved booking, custody and movement of prisoners in the jail.
Gaydos and several other officers, including Briggs and Anaheim Police Officer Kyle Bernard, were involved in moving Chenze through the jail. They went to Chenzes cell, told him he was going to be transported to court, handcuffed him and began to walk him through the facility. While moving Chenze through the area where the gun lockers were located, Chenze pulled away from the officers and tried to pull a key out of a gun locker with his teeth. After subduing him, the officers began to place him in the car. As Chenze began to sit down on the seat, he bounced up and hit Briggs in the face with his head, causing Briggs a small bump but no serious injury.
The defense presented testimony of a psychologist about the symptoms of heroin withdrawal. The witness had not reviewed any of the police reports or examined Chenze.
Bernard testified on rebuttal that Gaydos and Briggs were both custodial officers at the Anaheim jail. Neither carried weapons and both were in uniform at the time. He confirmed Gaydoss version of the events. Although he did not actually see Chenzes head make contact with Briggss head, he saw a scuffle and heard a commotion, after which Briggs stood up rubbing his forehead.
In closing argument, defense counsel conceded there was "no question that there was a head butt." The only issue was whether Chenze was acting in self-defense. Counsel argued Chenze was in the midst of heroin withdrawal at the time of the offense and subjectively believed he was being mistreated by the officers.
Counts 1 and 2 of the amended information charged Chenze with possession of a controlled substance. Count 3 charged him with violating section 243.1 (battery on a custodial officer). A prior prison term was alleged for enhancement purposes under section 667.5, subdivision (b) and allegations of two prior serious or violent felony convictions made this a Three Strikes case. ( 667, subds. (d), (e)(2); 1170.12, subds. (b), (c)(2).)
At trial, counsel for Chenze requested that as to count 3 the jury be instructed on the "lesser included" misdemeanor under section 243, subdivision (b). The trial court apparently agreed felony treatment under section 243, subdivision (c)(1) was inappropriate because there was no injury. However, it refused Chenzes request, stating the offenses described by sections 243.1 and 243, subdivision (b) were identical but for the punishment, and the prosecutor had the discretion to choose which statute to charge under.
The jury found Chenze guilty on all three counts. In a bifurcated trial, the court found the Three Strikes and prior prison term allegations true. Chenze was sentenced to concurrent 25-year-to-life terms on the two possession counts. A consecutive two-year term was imposed for battery on a custodial officer. The section 667.5, subdivision (b) enhancement was stricken.
I
Chenze contends he was improperly charged with violating section 243.1 because it was impliedly repealed by the subsequent amendment of section 243. In the alternative, he argues section 243 is the more specific statute and hence the only one under which he could be charged. We reject his contentions.
Chenze was charged with, and convicted of, violating section 243.1. That section was originally enacted in 1976 and provides that any battery on a custodial officer is a felony.(FN2) Section 243 also sets forth punishments for battery. It provides a battery is generally punished as a simple misdemeanor ( 243, subd. (a)), but also specifies more severe punishment for battery against various public safety officers. As amended in 1982 by Assembly Bill No. 3276 (1982-1983 Reg. Sess., hereafter AB 3276), which added custodial officers to the list of special victims (Stats. 1982, ch. 1353, 2, p. 5048), section 243, subdivision (b), makes a battery against a custodial officer a misdemeanor subject to up to one year in county jail,(FN3) and 243, subdivision (c)(1), makes the offense a wobbler -i.e. , punishable as a misdemeanor or felony -if injury is inflicted.(FN4)
Chenze argues that section 243.1 and section 243, as amended in 1982 by AB 3276, are in irreconcilable conflict. The older statute, section 243.1, provides that any battery against a custodial officer is a felony. But the more recent statute permits felony treatment only if injury is inflicted ( 243, subd. (c)(1)). The 1982 amendment to section 243 does not effect an implied repeal of section 243.1.
"In recognition of the courts constitutional role to construe, not write, statutes, "[a]ll presumptions are against a repeal by implication." It is the duty of this court to harmonize statutes on the same subject [citations], giving effect to all parts of all statutes if possible [citation]. [W]e will find an implied repeal "only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation." [] Significantly, whether the canon invoked is that the specific statute prevails over the general or that the latest statutory expression prevails, such canons share the requirement that the enforcement of one duly enacted statute at the expense of another on the same subject only applies when the two statutes cannot be reconciled. Restraint of judicial trespass into the legislative province is no doubt the reason for the rule that a judicially determined repeal requires a repugnancy between the two statutes that prevents their concurrent operation-a restraint that has constitutional underpinnings premised on the separation of powers." (Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001, 1013-1014, fns. omitted.)
The statutes are not in irreconcilable conflict as Chenze suggests. In re Rochelle B. (1996) 49 Cal.App.4th 1212, discusses some of the legislative history of both provisions. The court noted that section 243.1 was part of legislation introduced to include airport officers within the definition of peace officers for purposes of enhanced punishment for batteries committed against them "and separately to provide similar increased punishment for a new crime of battery committed against custodial officers. [Citation.]" (Id. at p. 1216.) When section 243 was amended in 1982 to include custodial officers among its special battery victims, "a report of the Assembly Committee on Criminal Justice suggested the bill should be amended to delete Section 243.1 of the Penal Code which is a special section referring only to custodial officers, apparently to avoid the resulting duplication in provisions setting out aggravated penalties for batteries against custodial officers. [Citation.] This suggestion was evidently ignored, with the result that two separate statutes now provide somewhat different punishments for batteries against custodial officers." (Id. at p. 1217, fn. omitted.)
We have obtained, and take judicial notice of, additional legislative history materials concerning AB 3276. An enrolled bill report recommending the Governor sign AB 3276, prepared by the California Youth and Adult Correctional Agency (Enrolled Bill Rep. on AB 3276 (1982 Reg. Sess.) September 20, 1982), explained the aim of the amendment was to "make the punishment for committing battery (when no injury or minor injury is inflicted) on a custodial officer the same as committing battery (when no injury or minor injury is inflicted) on a peace officer, fire fighter, or emergency medical staff." (Id. at p. 1.) The enrolled reports analysis explains, "According to the bills sponsors, simple battery charges against custodial officers are rarely pursued by local prosecutors because the present law only provides for felony charges with imprisonment in a state prison. Thus, these violators are rarely, if ever, punished. [] By providing for the option of county jail and/or fine for such violations, proponents hope that simple battery charges will be prosecuted more vigorously. Felony battery charges can still be pursued for the more serious cases." (Id. at p. 2.)
In view of the fact that the Legislature amended section 243 to include custodial officers when it was aware of section 243.1, it is apparent the Legislature intended to give prosecutors a full panoply of prosecutorial options for a battery on a custodial officer. Under section 243, the offense may be punished as a misdemeanor ( 243, subd. (b)), or a misdemeanor or felony if injury is inflicted ( 243, subd. (c)(1)). But the Legislature also apparently envisioned that there might be circumstances under which no or only slight injury was inflicted, but felony charges would nonetheless still be appropriate. Accordingly, it did not repeal section 243.1, and has very recently amended it. Senate Bill No. 205 (SB 205), passed in September 2001 and signed by the Governor in October, made numerous nonsubstantive changes to clarify and update some 77 sections of 8 different codes. (Stats. 2001, ch. 854.) With respect to section 243.1, SB 205 changed the word "his" to "his or her." (Stats. 2001, ch. 854, 24.) Although this was a minor amendment, it is not without significance because "[w]e do not presume that the Legislature performs idle acts . . . ." (Shoemaker v. Myers (1990) 52 Cal.3d 1, 22.) "The amendment of a statute ordinarily has the legal effect of reenacting (thus enacting) the statute as amended, including its unamended portions." (People v. Scott (1987) 194 Cal.App.3d 550, 554; see Gov. Code, 9605 [when statute is amended "portions which are not altered are to be considered as having been the law from the time when they were enacted . . . ."].)
Chenze takes umbrage with the notion that under section 243.1 all batteries on a custodial officer may be punished as felonies, but under section 243 only those in which injury is inflicted may. But "[i]t is axiomatic the Legislature may criminalize the same conduct in different ways. [Citations.]" (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 395.) The prosecutor has discretion to proceed under either of two statutes that proscribe the same conduct, but which prescribe different penalties. (United States v. Batchelder (1979) 442 U.S. 114, 123-125.)
Nor can Chenze find relief in the specific statute versus general statute distinction. He argues that section 243 is the "specific" statute because it distinguishes between the severity of a battery. If there is no injury, the offense is a misdemeanor; if there is injury, the offense is a wobbler. Section 243.1, he urges, is the "general" statute because it makes no distinction in severity-all batteries on custodial officers are felonies. Otherwise, the elements of both statutes are the same. Chenze points out that a violation of section 243, subdivisions (b) or (c) will always result in a violation of section 243.1. But the reverse is true as well. A violation of section 243.1, will always result in a violation of section 243, subdivisions (b) or (c). Thus, it is unclear where the distinction gets him.
Furthermore, the specific-statute-prevails-over-general-statute principle will not be applied when it appears the Legislature intended that prosecution under the general statute remains available in appropriate cases even though a more specific statute has been adopted. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250; People v. Woods (1986) 177 Cal.App.3d 327, 333-334.) As already noted, the two statutes can be harmonized. (People v. Price (1991) 1 Cal.4th 324, 385 ["Two statutes dealing with the same subject are given concurrent effect if they can be harmonized, even though one is specific and the other general"].) It is apparent the Legislature intended prosecution under section 243.1 remain an option because it did not repeal the section and has recently amended it.
II
Chenze contends the evidence is insufficient to support his conviction for battery on a custodial officer because there was inadequate evidence of the victims status as a custodial officer. In a related argument he claims the jury instructions were inadequate with respect to the victims status. We reject both contentions.
The elements of a violation of section 243.1 are: (1) a battery; (2) committed against the person of a custodial officer as defined in section 831; (3) the custodial officer was engaged in the performance of his or her duties; and (4) the defendant knew or reasonably should have known the victim was a custodial officer engaged in the performance of his or her duties.
Section 831 defines a custodial officer. Subdivision (a) provides, "A custodial officer is a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment or upon court order either for their own safekeeping or for the specific purpose of serving a sentence therein." Subdivisions (b) through (f) set forth the details regarding the rights, duties, training, and supervision of custodial officers. They may not carry firearms on the job ( 831, subd. (b)); they are subject to strict training standards ( 831, subd. (c)); they must be supervised by a peace officer if 20 or more custodial officers are on duty ( 831, subd. (d)); and they may use reasonable force in performing their duties and may make certain types of arrests and releases ( 831, subd. (f)).
The evidence was sufficient. Certainly, Briggss status as a custodial officer was an element of the offense (People v. Lara (1994) 30 Cal.App.4th 658, 665), but it was adequately established. Gaydos and Bernard, who were percipient witnesses, both testified Briggs was a custodial officer in the jail, he was in uniform, and he was assisting in the duties of a custodial officer-namely transporting a prisoner from his cell to a police car-when struck by Chenze.
Chenzes main complaint seems to be that there was no evidence that Briggs had satisfied the training requirements of section 831 or was properly supervised in the performance of his duties. But we may presume those official duties were performed. (Evid. Code, 664.) In People v. Flood (1998) 18 Cal.4th 470, 491, footnote 13, the Supreme Court confirmed the holding in People v. Lara, supra, 30 Cal.App.4th at pages 665-667, that in proving the analogous offense of assault on a peace officer, the prosecution need only prove that the victim was employed by a city as a peace officer in order to prove the victims status. It is not necessary to establish all of the details regarding training and supervision. The reasoning of those cases applies with equal force here. The evidence of Briggss actual employment at the Anaheim jail as a custodial officer, combined with the fact he was carrying out the duties of a custodial officer when the battery occurred, supports the logical inference that he received the proper training and supervision. Not surprisingly, this was never disputed at trial.
Nor are we persuaded by Chenzes contention the jury instructions were inadequate. The jury was given a modified version of CALJIC No. 9.22 advising on the elements of the offense including that it must find the victim was a custodial officer engaged in the performance of his or her duties. It was also given a modified version of CALJIC No. 9.23 advising that "a custodial officer is engaged in the performance of his duties if he is maintaining the custody of a prisoner or performing tasks related to the operation of a local detention facility."
Chenze complains that the jury was not instructed to find the "foundational statutory conditions" for being employed as a custodial officer, i.e., training and supervision, and thus important elements of the offense were removed from its consideration. But such a detailed instruction was unnecessary. (See People v. Flood, supra, 18 Cal.4th at p. 491, fn. 13; People v. Lara, supra, 30 Cal.App.4th at pp. 665-667.)
III
Chenze complains he was denied effective assistance of counsel. He raises two specific complaints: (1) trial counsel failed to make a section 1118.1 motion for acquittal on the charge of battery on a custodial officer; and (2) trial counsel failed to object to the testimony of Gaydos and Bernard regarding Briggss status as a custodial officer.
"It is defendants burden to demonstrate the inadequacy of trial counsel. [Citation.] . . . "In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citation.] Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citation.] [] Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [Citation], and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] Defendants burden is difficult to carry on direct appeal.... "Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Chenze contends counsel should have made a motion for acquittal ( 1118.1) at the close of the prosecutions case. He argues at that time there was insufficient evidence he reasonably could have known Briggs was a custodial officer because there was no evidence Briggs was in uniform.
We reject the complaint because such a motion was likely to have been futile. The court would most probably have allowed the prosecution to reopen its case and put in evidence that Briggs was in uniform. The trial court has broad discretion to reopen a case to allow introduction of additional evidence, so long as the initial failure to present the evidence was the result of inadvertence or mistake and not an attempt to gain a tactical advantage. (See People v. Goss (1992) 7 Cal.App.4th 702, 708; People v. Rodriguez (1984) 152 Cal.App.3d 289, 294.) Furthermore, trial counsel may have had a tactical reason for not making the motion, as it would have alerted the prosecution to a possible defect in the case.
Chenze also contends his trial counsel was incompetent for failing to object to certain testimony. First, he argues Gaydoss testimony regarding Briggss status as a custodial officer was inadmissible because it lacked a proper foundation. Gaydos, he urges, was not qualified to testify as to whether Briggs was a custodial officer employed at the jail. Next, Chenze complains Bernards testimony on rebuttal that Briggs was in uniform was not within the scope of the defense evidence, which was simply aimed at establishing Chenze was suffering from heroin withdrawal symptoms at the time of the battery.
Counsel is not ineffective for failing to make an objection if it would have likely been overruled. (People v. Osband (1996) 13 Cal.4th 622, 678.) The trial court would probably have overruled any objection to Gaydoss testimony as he had personal knowledge of the matter. (Evid. Code, 702, subd. (a).) Gaydos worked at the jail. Briggs was assisting him with transporting Chenze. Gaydos certainly had personal knowledge as to who his coworkers were and what duties they performed.
Nor can we say counsel was ineffective for failing to object to Bernards rebuttal testimony that Briggs was in uniform. Although it was beyond the scope of the defenses heroin withdrawal evidence, the trial court certainly had discretion to allow the prosecution to introduce additional evidence on the case-in-chief. ( 1093, subd. (d).) Had defense counsel objected to the rebuttal testimony, the trial court would likely have allowed such a reopening. Nor can we see how Chenze was prejudiced. Defense counsel conceded there was never an issue as to whether the battery occurred-the only issue was whether he believed, due to his heroin withdrawal, that he was acting in self-defense. Chenze argues that without Bernards belated testimony that Briggs was in uniform, there was no evidence he had knowledge Briggs was a custodial officer engaged in the performance of his duties. But even without that testimony, the jury could reasonably infer such knowledge. Chenze was in jail. Briggs and the other officers came to the jail cell and informed Chenze they were there to transport him to court. Having so identified their purpose, the jury could reasonably infer Chenze knew the officers were custodial officers engaged in the performance of their duties.
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.
O R D E R
The Orange County District Attorney has requested that our opinion, filed on March 14, 2002, be certified for publication. It appears that our opinion meets the standards set forth in California Rules of Court, rule 976(b). The request is GRANTED. Pursuant to California Rules of Court, rule 976(b) and 976.1, and the opinion is certified for publication with the exception of parts II and III.
OLEARY, J.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.
Notes:
(FN1). All further statutory references are to the Penal Code unless otherwise indicated.
(FN2). As it read at the time Chenze was charged and convicted, section 243.1 provided, "When a battery is committed against the person of a custodial officer as defined in Section 831 of the Penal Code, and the person committing the offense knows or reasonably should know that such victim is a custodial officer engaged in the performance of his duties, and such custodial officer is engaged in the performance of his duties, the offense shall be punished by imprisonment in the state prison." A 2001 nonsubstantive amendment is discussed infra.
(FN3). Section 243, subdivision (b) provides, "When a battery is committed against the person of a . . . custodial officer . . . engaged in the performance of his or her duties, whether on or off duty . . . and the person committing the offense knows or reasonably should know that the victim is a . . . custodial officer . . . engaged in the performance of his or her duties . . . the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment."
Section 243, subdivision (f)(6) defines "[c]ustodial officer" as "any person who has the responsibilities and duties described in Section 831 and who is employed by a law enforcement agency of any city or county or who performs those duties as a volunteer."
(FN4). Section 243, subdivision (c)(1) provides, "When a battery is committed against a custodial officer . . . engaged in the performance of his or her duties, whether on or off duty, . . . and the person committing the offense knows or reasonably should know that the victim is a . . . custodial officer . . . engaged in the performance of his or her duties, . . . and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years." (Italics added.)
Section 243, subdivision (f)(5) defines "[i]njury" as "any physical injury which requires professional medical treatment."