Opinion
F074149
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. CAMERON BANCROFT, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. DF012114B)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
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INTRODUCTION
Appellant Cameron Bancroft was found guilty of two counts of violating Penal Code section 4502, subdivision (a), possession of a sharp implement while confined in a penal institution. Bancroft appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Bancroft was incarcerated at Kern Valley State Prison on November 26, 2014. Bancroft was assigned to a "sensitive needs" yard, an assignment that could be made if he would be in danger in the general population. Bancroft belonged to the Independent Riders, a gang specific to the sensitive needs yard. His cellmate, Jimmy Cardenas, had dropped out of the Two Fivers gang and joined the Independent Riders gang, placing Cardenas at risk for gang retaliation.
The sensitive needs yard was operated at the highest level of security, although there were "a lot of weapons" on the yard. Every third day the inmates gathered in a day room between 7:00 p.m. and 8:45 p.m. By 9:15 p.m., all inmates had to be in their cells.
Correctional Officer Chris Brubaker worked at the prison as a search and escort officer; cell searches were part of his duties. Around 8:15 p.m. on November 26, 2014, Brubaker went to cell 113. As the door opened, he asked the inmates in the cell to lie flat; Cardenas and Bancroft complied. Brubaker took Cardenas to the showers, where an inmate-manufactured weapon approximately six inches long, and sharpened at one end, was found in his shoe.
Correctional Officer Raymond Garza escorted Bancroft to the showers, where he was searched. No weapons were found.
Sergeant Robert Rodriguez led the search of the cell. Rodriguez saw an inmate-manufactured weapon consisting of a razor blade attached to a pencil in plain view on the desk. Inside a towel, near the toilet, was a sharpened piece of metal.
Sergeant Rodriguez noticed that Bancroft had a metal knee brace that appeared to be made from the same metal as used for the weapons. One side of the knee brace had a 12-inch length of similar metal. The other side of the knee brace was missing.
Bancroft and Cardenas were moved to administrative segregation housing in the prison.
Subsequently, on April 3, 2015, Correctional Officer Calvin Love escorted Bancroft to a holding cell that contained no contraband. Love then transported Bancroft and another inmate to central treatment for medical attention. The transport van had a wrought iron and Plexiglass barrier separating the driver and front seats from the rear of the van. In the back of the van were two rear-facing seats and a bench seat.
As they disembarked at central treatment, one inmate, McGinniscox, made a derogatory remark to Bancroft and lunged at him. McGinniscox and Bancroft belonged to different gangs. Bancroft was instructed to go to the door of the central treatment building and complied; McGinniscox had to be tackled and restrained. McGinniscox was in waist and ankle restraints; Bancroft was in waist restraints.
Correctional Officer Ricky Charles was alerted to an incident in the central treatment area. Bancroft was taken to a holding cell and instructed to strip off all his clothes; Bancroft protested. As Bancroft's clothes were being removed, he said, " 'All right, all right' " and dropped an inmate-manufactured weapon from his right hand. The weapon was plastic, about five inches long, and sharpened to a point.
Bancroft was charged with two counts of possession of a sharp instrument while confined in a penal institution, a violation of section 4502, subdivision (a); one count each for the November 26, 2014, incident and the April 3, 2015, incident. As to both counts, it was alleged that Bancroft had two prior serious felony convictions, one for first degree burglary and one for robbery, within the meaning of section 667, subdivisions (c) through (j). It was further alleged that Bancroft had served multiple prior prison terms within the meaning of section 667.5, subdivision (b).
At trial, Bancroft testified in his own defense. He admitted having weapons in his cell on November 26, 2014, claiming he wanted the prison guards to find them and move him to administrative segregation because he feared for his life. He claimed he had previously begged the guards to move him, but his pleas were ignored. No contact with other inmates is permitted in administrative segregation, and Bancroft thought he would be safer in that setting.
Bancroft testified that the Independent Riders told him to attack Cardenas because of his Cardenas's prior gang membership. Instead, he told Cardenas what the Independent Riders had instructed him to do; Bancroft feared the Independent Riders would "come after" him as a result.
Bancroft wanted to be caught with the weapons to protect himself and Cardenas. Bancroft acknowledged using metal from his brace to make the weapons found in the cell.
As for the weapon found when he was transported to central treatment, Bancroft stated he had been searched before being taken from his cell; he had no weapon. The weapon found was made of melted plastic; he had no means of melting plastic in his cell. McGinniscox pushed something in his direction when they were seated in the back of the transport van. Bancroft saw it was a weapon, picked it up, and concealed it in his waistband. Bancroft hid the weapon because he did not trust the officers and did not know what else to do.
At the conclusion of testimony, the trial court instructed the jury. Among the instructions given to the jury were instructions setting forth the elements of the section 4502 offense and the requisite mental state required for that offense. The trial court also instructed on the defense of legal necessity and that the defendant had the burden of proving this defense by a preponderance of the evidence.
During deliberations, the jury submitted a question asking for clarification of the definition of preponderance of the evidence.
The jury found Bancroft guilty of both counts. Trial of the prior conviction allegations was bifurcated. The trial court found true that Bancroft previously was convicted of two prior serious felonies. Four section 667.5 allegations were found true.
Prior to imposition of sentence on June 14, 2016, Bancroft made an oral motion pursuant to section 1385 to dismiss the prior strike allegations. A great deal of discussion ensued regarding an appropriate sentence. The trial court eventually imposed the upper term of eight years for one of the section 4502 offenses, with an additional three years for three section 667.5 enhancements; and one-third the midterm, or two years, for the second section 4502 offense, to be served consecutively. On another offense not charged in the instant case, the trial court imposed a sentence of one-third the midterm or two years, to run consecutively. The total term was 15 years.
The abstract of judgment accurately reflects the trial court's oral pronouncement of sentence.
Bancroft filed a notice of appeal on August 2, 2016.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on April 17, 2017. That same day, this court issued its letter to Bancroft inviting him to submit supplemental briefing. No supplemental brief was filed.
Codefendant Cardenas's appeal was deemed abandoned on March 6, 2017.
Section 4502, subdivision (a) provides:
"Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution,
possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as ... any dirk or dagger or sharp instrument, ... is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, to be served consecutively."
Legislation enacted in 1993 renumbered section 4502 as section 4502, subdivision (a). (Stats.1993, ch. 554, § 1.)
Section 4502, subdivision (a) creates a strict liability offense because it is not necessary to establish a defendant possessed the prohibited object with any intent. (People v. Steely (1968) 266 Cal.App.2d 591, 594-595; People v. Wells (1945) 68 Cal.App.2d 476, 481.) Nevertheless, there must be evidence of knowing possession of the prohibited object. (People v. Strunk (1995) 31 Cal.App.4th 265, 272.) Here, Bancroft's own testimony established that he knowingly was in possession of the inmate-manufactured weapons.
The trial court found true that Bancroft had two prior serious felony convictions within the meaning of section 667, subdivisions (c) through (j), but the trial court did not apply section 667, subdivision (e) to increase the sentence. Pursuant to section 667, subdivision (f), the trial court was required to apply the provisions of section 667, subdivision (e)(2)(C) at sentencing and double the term imposed, or strike the prior serious felony conviction enhancements pursuant to section 1385.
Section 4502 is not a serious felony as defined in section 667, subdivision (d), thus the provisions of section 667, subdivision (e)(2)(C) apply to double the term; section 667, subdivision (e)(2)(A) does not apply and an indeterminate term could not be imposed. --------
Although the minute order for the sentencing hearing states the trial court denied Bancroft's motion, the trial court did not impose the section 667 enhancement at the sentencing hearing and the abstract of judgment, in box 4, does not reflect that Bancroft was sentenced pursuant to section 667.
At the sentencing hearing, the trial court engaged in a lengthy discussion as to the appropriate term to be imposed and it is clear the trial court deliberately imposed the sentence it did. Consequently, we will deem the minute order as incorrectly reflecting the trial court's ruling on Bancroft's motion and deem the trial court to have stricken the section 667 prior serious felony conviction enhancements, thus avoiding an unauthorized sentence. (See People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
Furthermore, the trial court found four section 667.5 allegations to be true. However, only three were imposed. A trial court must impose or strike a section 667.5 enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Again, because of the lengthy discussion at sentencing, we deem any section 667.5 enhancements not imposed to have been stricken pursuant to section 1385. (People v. Bradley, supra, 64 Cal.App.4th at p. 391.)
DISPOSITION
The judgment is affirmed.