Opinion
H044227
08-27-2018
In re SHEDRICK L. HENRY, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. HC8805)
I. INTRODUCTION
In 2002, petitioner Shedrick L. Henry was convicted of violating former Penal Code section 4501, which provided: "Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony and shall be imprisoned in the state prison for two, four, or six years to be served consecutively." (Stats. 1978, ch. 579, § 33, italics added.) At the time of the offense, petitioner was serving an indeterminate life sentence for murder.
All further unspecified section references are to the Penal Code.
In 2016, petitioner filed a petition for writ of habeas corpus in which he claimed, inter alia, that former section 4501 did not apply to him at the time of the offense, because he was serving a life sentence. This court issued an order to show cause, the Attorney General filed a return, and petitioner filed a traverse.
We agree that habeas relief is warranted because petitioner's conviction of violating former section 4501 was invalid, and we conclude that the proper remedy is to order the trial court to vacate the judgment, modify count 1 to reflect a conviction of former section 245, subdivision (a)(1), and resentence petitioner.
II. BACKGROUND
In 1996, petitioner was convicted of second degree murder and discharging a firearm at an inhabited dwelling, with firearm use allegations found true. Petitioner was sentenced to serve 19 years to life.
In 2001, petitioner was charged with assault by a prisoner (former § 4501; count 1) and possession of a weapon by a prisoner (former § 4502, subd. (a); count 2). Count 1 specifically alleged that petitioner "did willfully and unlawfully, being confined in a state prison, commit an assault with force likely to cause great bodily injury upon the person of another . . . ."
In 2002, petitioner waived jury trial and had a court trial on both counts. At the court trial, a correctional officer testified that he saw petitioner and another inmate "engaged in mutual combat." Petitioner was attempting to stab the other inmate with a metal weapon that was about five and a half inches long, about an inch wide, and about an eighth of an inch thick. The other inmate suffered one laceration, which was "consistent with being cut with a weapon." Petitioner argued that the evidence did not prove beyond a reasonable doubt that he was using a weapon during the fight.
On our own motion, we have taken judicial notice of the record from petitioner's 2002 convictions. (See Evid. Code, § 452, subd. (d).)
The trial court found there was "really no question about the fact that [petitioner] had a weapon and was using it," but noted that petitioner was "only charged with assault by a prisoner with force likely [to produce great bodily injury]." The trial court found petitioner "guilty of that offense" (count 1) and guilty of possession of a weapon in prison (count 2).
At petitioner's sentencing hearing, the trial court imposed the low term of two years for the assault by a prisoner conviction (count 1), but doubled that term to four years due to a "strike prior" that was found true. However, the original abstract of judgment incorrectly reflected that a two-year term was imposed for each count. (See People v. Henry (Aug. 29. 2003, H024491) [nonpub. opn.].)
Petitioner appealed to this court, arguing that the term for possession of a weapon by a prisoner (count 2) should have been stayed pursuant to section 654. (People v. Henry, supra, at p. 2.) In 2003, this court remanded the matter to the trial court for resentencing. (Id. at p. 4.)
A resentencing hearing was held on December 18, 2003. The minute order for that hearing reflects that count 2 was dismissed pursuant to section 1385 and that petitioner was sentenced to the original four-year term for count 1. The minute order and abstract of judgment also reflect, however, that the term for count 1 was stayed pursuant to section 654.
In September 2016, petitioner filed a petition for writ of habeas corpus in the trial court, challenging his 2002 sentence based on Johnson v. United States (2015) ___ U.S. ___ , which found a portion of the Armed Career Criminal Act of 1984 unconstitutionally vague. The trial court denied the petition.
Petitioner filed the instant petition for writ of habeas corpus in this court in December 2016. He set forth three grounds for relief, all of which pertained to his 2002 convictions: (1) his due process rights were violated because the trial court did not make findings as to whether the assault was committed with a deadly weapon or by means of force likely to produce great bodily injury; (2) he was improperly convicted of violating former section 4501 since he was serving a life sentence and the statute applied only to prisoners serving less than a life sentence; and (3) his jury trial waiver was invalid because former section 4501 did not apply to him.
This court requested the Attorney General file informal opposition. The Attorney General conceded that former section 4501 did not apply to petitioner, but he argued that petitioner was not entitled to habeas relief because his petition was untimely.
In April 2017, petitioner filed a "supplemental amended" petition for writ of habeas corpus. Petitioner claimed he received ineffective assistance of counsel at his December 2003 resentencing hearing.
In April 2018, this court issued an order to show cause regarding petitioner's claim that his conviction under former section 4501 is invalid because he was serving an indeterminate life sentence at the time of the offense. This court indicated that consideration of petitioner's claim of ineffective assistance of counsel was deferred. Counsel was appointed for petitioner.
III. DISCUSSION
In his return, the Attorney General concedes that petitioner's conviction of assault by a prisoner was invalid "because [former] section 4501 expressly exclude[d] prisoners serving a life sentence." We find the concession appropriate. (See People v. Noah (1971) 5 Cal.3d 469, 476 (Noah) [former section 4501 was "applicable only to prisoners serving a sentence of less than life"].)
Section 4501 was subsequently amended to remove the phrase "except one undergoing a life sentence." (Stats. 2004, ch. 405, § 17.) At the time of petitioner's offense, assault by a person "undergoing a life sentence" was a violation of section 4500, only if the assault was committed with malice aforethought. (Stats. 1986, ch. 1445, § 1.)
The Attorney General contends the proper remedy is that ordered in Noah: modification of the judgment to reflect a conviction of former section 245, subdivision (a)(1)—assault with a deadly weapon or by means of force likely to produce great bodily injury. (See Stats. 1999, ch. 129, § 1.)
Petitioner agrees with the suggested remedy, "with one qualification": that the modified judgment reflect that his violation of former section 245, subdivision (a)(1) was for an assault by means of force likely to cause great bodily injury. Although former section 4501 covered both assault with a deadly weapon and assault by means of force likely to produce great bodily injury (Stats. 1978, ch. 579, § 33), the complaint alleged that petitioner committed only "an assault with force likely to cause great bodily injury upon the person of another." The complaint did not include the alternative means of violating former section 4501, i.e., by committing an assault with a deadly weapon. And as noted previously, when rendering its verdicts, the trial court observed that while there was evidence that petitioner had used a weapon, the charge was "only . . . assault by a prisoner with force likely," and the trial court found him "guilty of that offense."
Effective January 1, 2015, section 4501 was amended to include two subdivisions: subdivision (a) covers assault with a deadly weapon by a prisoner, and subdivision (b) covers assault by means of force likely to produce great bodily injury by a prisoner. (Stats. 2014, ch. 51, § 1.)
A conviction of assault with a deadly weapon qualifies as a serious felony (§ 1192.7, subd. (c)(31)) and thus as a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), whereas assault by means of force likely to cause great bodily injury does not qualify as a strike. (See People v. Gallardo (2017) 4 Cal.5th 120, 125 (Gallardo).) Former section 245, subdivision (a)(1), like former section 4501, could be violated by either an assault with a deadly weapon or an assault by means of force likely to produce great bodily injury. (See Stats. 1999, ch. 129, § 1.)
Petitioner alleges that his conviction of violating former section 4501 was used "as a prior conviction, and counted as a strike," when he was sentenced for a 2014 conviction for possession of a controlled substance in prison, but he does not include any documentation of that proceeding.
Since petitioner was charged with assault by a prisoner "with force likely to cause great bodily injury" and the trial court found him guilty of "assault by a prisoner with force likely [to produce great bodily injury]," we agree that it is appropriate to order the judgment modified to reflect a conviction of assault by means of force likely to produce great bodily injury in violation of former section 245, subdivision (a)(1). (See Gallardo, supra, 4 Cal.5th at p. 137 [courts may rely on "certain documents," such as indictments and jury instructions, "to identify the precise statutory basis for a prior conviction"]; Johnson v. United States (2010) 559 U.S. 133, 144 [charging documents and verdict forms can show "the basis for the conviction"].) We will grant habeas relief by ordering the trial court to vacate the judgment, modify petitioner's conviction in count 1, and resentence petitioner.
The Attorney General contends this court should also order the abstract of judgment corrected to reflect an unstayed sentence for count 1. Since we are ordering resentencing, that issue is moot. --------
IV. DISPOSITION
The petition for writ of habeas corpus is granted as to petitioner's claim that he was improperly convicted of violating former Penal Code section 4501. The trial court is directed to vacate the judgment, modify the conviction in count 1 to reflect a conviction of assault by means of force likely to produce great bodily injury in violation of former Penal Code section 245, subdivision (a)(1), and resentence petitioner.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.