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People v. Jackson

Court of Appeals of California, First Appellate District, Division Four.
Nov 20, 2003
No. A101088 (Cal. Ct. App. Nov. 20, 2003)

Opinion

A101088.

11-20-2003

THE PEOPLE, Plaintiff and Respondent, v. RACARDO SHEVEZ JACKSON, Defendant and Appellant.


Racardo Shevez Jackson appeals from a judgment of conviction upon a jury verdict finding him guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and possession of ecstasy, a controlled substance (Health & Saf. Code, § 11377). He contends that the trial court erred in amending the verdict form to charge an offense different from that alleged in the information. We conclude that the courts amendment to the verdict form violated defendants right to due process and therefore reverse.

Unless otherwise indicated, all further statutory references are to the Penal Code.

I. FACTUAL BACKGROUND

Following defendants waiver of his right to a preliminary hearing, the district attorney filed an information charging defendant and two codefendants with three counts of home invasion robbery (§§ 211, 212.5, subd. (a)). The information further charged codefendant Andre Lamont Phillips with being a felon in possession of a firearm, a .38 handgun, and charged defendant with being a felon in possession of a firearm, a . 30 rifle. Defendant was also charged with sale of a controlled substance, ecstasy. The information further alleged that Phillips personally used a .38 handgun while defendant used a .30 rifle.

This count of the information was subsequently amended to charge possession of a controlled substance.

At trial, the prosecution presented the testimony of Rene Goodwin and Ray Tongson. They testified that on October 28, 2001, they were staying in a two-room suite at the Courtyard Suites in Fairfield. Their three-year-old son and Tongsons brother, Jonathan Terry, were also with them. On the evening of October 28, Michael Bailey, an acquaintance that Goodwin and Tongson knew from the neighborhood, knocked on their door and asked to use the telephone. Defendant and Phillips followed Bailey into the suite. While Tongson went to the back room to get the telephone, defendant pulled out a rifle. When Tongson returned to the front room, defendant pointed the rifle at Tongson and demanded everything in his pocket. Defendant told Tongson to get on the floor and when he did not comply, defendant hit him in the back of the head with the rifle and he fell to the floor. Phillips had a handgun and used it to get Terry to lie on the floor in the back room. Meanwhile, Bailey moved Goodwins son, who was on the bed in the back room, to the bathroom. Bailey then went around the suite, going through the closets and drawers and taking a leather jacket, a car stereo, Play Station II, compact discs and DVDs. Defendant took Tongsons watch, his shoes, a silver chain with a razor blade, a cell phone and a pager. Phillips took $50 from Goodwin. Tongson testified that $600 was taken from him. The incident lasted about 10 to 15 minutes. Goodwin called the police approximately 10 minutes after the incident. Tongson admitted a prior conviction for robbery in 1994.

Officer Gagliardi testified that Tongson said $200 was taken from him. Tongson denied that he told Gagliardi that $200 was taken and testified during cross-examination that the amount taken was under $700.

Officers Gagliardi and Marshall responded to the scene and took statements from Tongson, Goodwin, and Terry. The latter gave similar descriptions of the suspects. About 3:45 a.m. on October 29, 2001, Gagliardi and Marshall stopped to eat at Dennys where they recognized defendant and Bailey from the descriptions they were given. Gagliardi arrested Bailey and detained defendant in the restaurant and detained Phillips in the parking lot. The police called the victims who identified Bailey, Phillips, and defendant as the robbers. In a search of defendant pursuant to his arrest, Gagliardi found a .30 or .35 caliber rifle round and 13 wrapped tablets of ecstasy. Gagliardi also found Tongsons watch on defendant. Mario Brown, who was also detained in the parking lot, was wearing Tongsons silver chain and had 15 to 20 of the victims CDs in his coat pocket. Gagliardi further found that Bailey had $103, Phillips had $84, and defendant had $707. In the car allegedly used in the robbery, the police found property belonging to the victims and a .380 handgun under the drivers seat. The key to the car was found in Phillipss pocket. The police did not find a rifle. Gagliardi acknowledged that the area around the Courtyard Suites Hotel is known for drug activity.

In defense, Bailey testified that he knew Tongson because he sold drugs to him over a period of several months. Bailey regularly went to the Tabor Villa Apartments, the apartment complex across the street from the Courtyard Suites, to sell drugs. He had a disagreement with Goodwin over drugs some months before the incident.

On October 28, 2001, between 6:00 and 7:00 p.m., Tongson approached Bailey, who was at the Tabor Villa apartment complex, with a gym bag full of things he wanted to sell. Bailey noticed that there was a Play Station in the bag and became interested in purchasing the bags contents. The bag also contained shoes, CDs, car stereos, a jacket, a handgun, and two rifle bullets. Tongson took off a silver chain with a little razor on it and offered to sell it as well. Tongson wanted $500 to $600 for the items. Bailey offered him a quarter ounce of marijuana and a quarter ounce of cocaine for the items. Tongson agreed to the deal. Defendant and Phillips were with Bailey when he got the items; Bailey put the items in the trunk of a car that he believed belonged to defendant. He testified that defendant and Phillips switched back and forth driving the car. Bailey gave the silver chain to Phillips.

The car was a rental car.

According to Bailey, about an hour and a half to two hours later, Tongson returned to the apartment complex. Goodwin, Terry, and Goodwins son accompanied Tongson. They were angry and demanded return of their things, saying the cocaine was "fake." Bailey responded by asking them to return the cocaine. Tongson said he threw it away. They argued, and Bailey told them if they did not get out of his face, he would "whip their ass." Tongson and the others left with Tongson telling Bailey, "`[w]ell see. " Bailey denied going to Tongsons room at the Courtyard Suites and denied taking any property from him.

In closing arguments, the prosecutor consistently argued that defendant possessed a rifle during the robbery while Phillips possessed a handgun. Defendants trial counsel also proceeded in argument on the theory that defendant was charged with possession of a rifle.

During jury deliberations, the jury sent a note to the court requesting clarification of the felon in possession charge against defendant. The note stated, "[p]lease clarify count [5] on Mr. Jackson possession of firearm: rifle only or pistol or either." The jury sent another note a half hour later again seeking clarification on count 5 and asking, "is this rifle only or any firearm such as .380 handgun." The court discussed the issue with counsel in chambers and over defense counsels objection, it responded to the jury by stating, "as the law instructed you, a firearm includes a rifle or a handgun." The court also sent to the jury an amended verdict form that added "firearm, includes rifle or handgun." Twenty minutes later, the jury returned to the courtroom with a verdict. It acquitted defendants on the home invasion robbery charge, but found defendant and Phillips each guilty of being a felon in possession of a firearm. The jury also found defendant guilty of possession of a controlled substance.

In a bifurcated proceeding, defendant admitted the allegations that he suffered a prior felony strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior prison term (§ 667.5), and a prior serious felony conviction under section 667, subdivision (a)(1).

II. DISCUSSION

Defendant contends that the trial courts amendment of the verdict form constituted a constructive amendment of the information in violation of his due process rights. This contention has merit.

It is well settled that due process of law requires that an accused receive reasonable notice of the charges against him in order that he may have an opportunity to prepare and present his defense. (People v. Thomas (1987) 43 Cal.3d 818, 823; In re Oliver (1948) 333 U.S. 257, 273.) "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal . . . . It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." (Cole v. Arkansas (1948) 333 U.S. 196, 201.)

Ordinarily, the preliminary hearing or grand jury transcript will provide an accused with notice of the nature of the charges against him, thus satisfying due process requirements. (Sallas v. Municipal Court (1978) 86 Cal.App.3d 737, 742.)

Here, however, defendant waived his right to a preliminary hearing; his notice of the charges against him was thus limited to the information. " `[T]he specific allegations of the accusatory pleading, rather than the statutory definitions of offenses charged, constitute the measuring unit for determining what offenses are included in a charge. " (People v. Thomas, supra, 43 Cal.3d at p. 826.) Thus, in examining whether the courts amendment of the verdict form constituted a change to the information, we must determine whether the discrepancy between the verdict form and the information constituted a variance or an amendment. " `A variance occurs when the proof introduced at trial differs materially from the facts alleged in the [information]. In contrast, an amendment involves a change, whether literal or in effect, in the terms of the [information]. [Citation.] If the discrepancy is a mere variance, then it is subject to the harmless error rule. [Citation.] By contrast, if the discrepancy constitutes an amendment (often referred to in the case law as a constructive amendment), then it may be prejudicial per se. [Citation.] [¶] As the Supreme Court indicated in Stirone v. United States [(1960) 361 U.S. 212, 218], where a defendant is convicted of a crime and where a grand jury never charges the defendant with an essential element of that crime, a constructive amendment of the indictment has occurred, and reversal is warranted." (Jones v. Smith (9th Cir. 2000) 231 F.3d 1227, 1232-1233 & fn. 1.)

A " `critical consideration [in determining if a constructive amendment has occurred] is whether the introduction of the new theory changes the offense charged . . . or so alters the case that the defendant has not had a fair opportunity to defend. " (Jones v. Smith , supra, 231 F.3d at p. 1233; see U.S. v. Nuñez (5th Cir. 1999) 180 F.3d 227, 230-234 [court constructively amended indictment when it instructed the jury on assault with and without a firearm and the indictment charged only assault with a firearm]; United States v. Shipsey (9th Cir. 1999) 190 F.3d 1081, 1087-1088 [courts instruction allowing jury to convict defendant of theft without a finding of fraud constituted constructive amendment of indictment that charged only theft by fraudulent pretenses].) Here, the courts act of amending the verdict form to include the offense of possession of a handgun constituted a constructive amendment of the information to charge a new offense. The information charged defendant specifically with possession of a rifle; it did not charge defendant with possession of a handgun. Indeed, the prosecutions theory of the case was that defendant committed the offense of being a felon in possession of a firearm by possessing a rifle during the alleged home invasion robbery. During closing argument, the prosecutor repeatedly referred to defendant as "the guy with the rifle" and argued that the rifle round found in defendants pocket further supported convicting him of being a felon in possession of a firearm. By amending the verdict form, the court permitted the jury to convict defendant based upon possession of a handgun, an offense that defendant had no notice he would be required to defend.

The Attorney Generals argument that there was no error because defendant was convicted of the exact offense for which he was charged is misguided. Section 12001, subdivision (k) provides that "notwithstanding the fact that the term `any firearm may be used [in section 12021], each firearm . . . shall constitute a distinct and separate offense under those sections." Since the evidence in this case showed two distinct incidents involving two separate weapons, it supported two charges of violating section 12021, subdivision (a). (People v. Burnett (1999) 71 Cal.App.4th 151, 169-170.) The prosecution, however, chose to prosecute only one violation of section 12021: The information alleged only a single incident and specified that the firearm in defendants possession was a rifle. Moreover, the prosecutor maintained throughout the trial that defendant possessed a rifle, not a handgun. The courts act in amending the verdict form to charge handgun possession, thus, came as a surprise to defendant and denied him his due process right to notice of the particular acts against which he must defend. "An accused person is entitled to know . . . which of his or her acts the prosecution claims were criminal." (People v. Salvato (1991) 234 Cal.App.3d 872, 880.)

As defendant did not have notice that the prosecution intended to prosecute him for possession of the handgun found in the car, his conviction for that offense must be reversed.

In light of our resolution of this issue, we need not reach the other contentions raised by defendant.

III. DISPOSITION

The judgment of conviction for possession of a firearm by a felon is reversed. The case is remanded to the trial court for resentencing.

We concur: KAY, P.J., REARDON, J.


Summaries of

People v. Jackson

Court of Appeals of California, First Appellate District, Division Four.
Nov 20, 2003
No. A101088 (Cal. Ct. App. Nov. 20, 2003)
Case details for

People v. Jackson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RACARDO SHEVEZ JACKSON, Defendant…

Court:Court of Appeals of California, First Appellate District, Division Four.

Date published: Nov 20, 2003

Citations

No. A101088 (Cal. Ct. App. Nov. 20, 2003)