Opinion
C084036
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. WESLEY WILLIAM KESSLER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE007753)
Defendant Wesley William Kessler was charged by information with carrying a concealed dirk or dagger (Pen. Code, § 21310) and misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) with a prior strike (§ 667, subds. (b)-(i)) and two prior prison terms (§ 667.5, subd. (b)). The trial court declared a mistrial after the jury could not reach a verdict. On retrial, the jury found defendant guilty on both counts and sustained one of the prison priors. The trial court declared a mistrial as to the other prison prior. Defendant admitted the second prison prior and strike, and the trial court imposed a five-year state prison term. Following defendant's subsequent sentence in an unrelated case, he was sentenced to a total state prison term of 13 years four months.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the admission of a prior uncharged incident of carrying a concealed weapon was an abuse of discretion and violated his due process right to a fair trial. Defendant also argues the trial court was required to give unanimity instructions for both carrying a concealed weapon and resisting a peace officer. Finding the evidence was properly admitted and unanimity instructions were unnecessary or already given, we shall affirm.
I. BACKGROUND
A. The Crimes
In April 2016, Ramona lived in a house on 67th Street in Sacramento with Kristin, defendant, and several other people. On April 20, 2016, while away from the house, Ramona received a Facebook message from Kristin about an altercation between defendant and Kristin at the house. Ramona called 911, and then she met Kristin near the house. When officers arrived a few minutes later, Ramona told them defendant was carrying a large blue-handled knife.
According to Ramona, defendant usually kept a blue-handled knife in the back pocket of his pants. Within a day of the incident, Ramona saw an all-metal knife next to defendant' s tools in the garage. Defendant did projects for the owner of their home, but Ramona did not know if defendant used either knife on those projects.
Kristin testified that defendant did jobs around the house, and she had seen the blue-handled knife on the work bench.
Kristin testified that she did not see defendant with a knife during their altercation. When the altercation ended, Kristin exchanged Facebook messages with Ramona and then met her down the street from the house. When Kristin met with Ramona, Ramona gave her the phone to talk to 911. She told the operator that defendant usually carried a knife. Kristin did not remember whether she told officers that defendant was armed with a large blue-handled knife or a large all-metal knife. She thought she told them defendant usually had a knife in his back pocket.
Kristin saw defendant quickly run around the corner while being pursued by officers. Defendant held an object in his hand, but she could not see what it was. As he ran past her, defendant threw the object over a fence. Officers apprehended him near 40th Avenue and 68th Street.
Sacramento Police Officer Michael Hight and Community Service Officer (CSO) Jeff Boresz were dispatched to the incident. They arrived in uniform in a marked patrol car. They contacted Kristin and Ramona on 40th Avenue, around the corner from the house. They told the officers defendant was armed with a large blue knife and a homemade knife. During the conversation, Officer Hight saw defendant walking to the corner of 67th Street and 40th Avenue. Upon seeing the officers, defendant turned and walked away.
Officer Hight drove the patrol car to defendant and yelled at him to stop. Defendant ran at the patrol car on an angle and went behind the vehicle. Officer Hight did not see any object in defendant's hands when he started to run away from them.
A video from the patrol car camera was played to the jury. The video began when the officers talked to Kristin and Ramona.
As they pursued defendant in the patrol car, CSO Boresz told Officer Hight that he saw a knife. Officer Hight saw defendant, who was on the patrol car's right, reach into the front part of his body, pull out a blue-handled knife, and throw it. He then saw defendant throw a second knife. Defendant stopped after Officer Hight pulled his gun and ordered him to stop. Defendant was arrested and searched. He did not have a sheath or knife holster. Officer Hight agreed that the blue-handled knife recovered at the scene could be a type of utility knife.
According to CSO Boresz, Ramona and Kristin told them to be careful because defendant had a kitchen knife with a blue handle and a homemade knife. Officer Hight yelled to defendant to stop as they drove up to him. CSO Boresz did not remember seeing anything in defendant's hands at the time. Defendant pulled out a knife and threw it when he reached 40th Avenue. Running down the sidewalk on 40th Avenue, defendant threw a second knife over a fence. CSO Boresz later recovered a blue-handled knife from a yard on the corner of 67th Street and 40th Avenue, and a silver homemade knife from the area where defendant had thrown the second knife.
Both knives were about 10 inches long with four-inch fixed blades. B. Prior Misconduct
On June 23, 2014, Sacramento Police Officer Chai Vang and his partner stopped defendant for not having a forward-facing light on his bicycle. The officers found an opened pocket knife with a three-inch blade hidden under defendant's waistband. After the officer found the knife, defendant explained, " 'I'm a white guy on Florin Road, I need it for protection.' "
II. DISCUSSION
A. Evidence of Prior Uncharged Conduct
Defendant contends the trial court prejudicially abused its discretion in admitting, under Evidence Code section 1101, the 2014 incident in which he carried an opened pocket knife. The trial court admitted the uncharged misconduct evidence over defendant's objection, finding it relevant to prove knowledge and intent, was recent in time, was similar to the current offense, and would not involve an undue amount of time. He argues the evidence was not admissible to prove knowledge, because defendant's knowledge that he was carrying the knives was undisputed, knowledge that the knives were concealed is not an element of the crime, and the evidence was unnecessary and cumulative to prove that he knew the knives could be used as weapons. He also argues the uncharged prior evidence was not admissible to prove lack of mistake because defendant never put into issue that his conduct was the result of inadvertence or mistake. Finally, he asserts that even if the evidence was relevant, it was an abuse of discretion not to exclude it under Evidence Code section 352 because the evidence was not substantially probative, was cumulative, and inherently prejudicial.
Generally, the prosecution may not use a defendant's prior uncharged act as evidence of a disposition to commit a charged criminal act. (Evid. Code, § 1101, subd. (a).) But such evidence is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
Because evidence of other crimes may be highly inflammatory, the admission of such evidence must " ' "not contravene other policies limiting admission, such as those contained in Evidence Code section 352." ' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 637.) Under Evidence Code section 352, the probative value of a defendant's prior act must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Ewoldt (1994) 7 Cal.4th 380, 404; Evid. Code, § 352.) "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
In order to convict a person under section 21310, the prosecution must prove beyond a reasonable doubt that the defendant carried a dirk or dagger on his or her person, knew it could be readily used as a stabbing weapon, and the dirk or dagger was substantially concealed on the defendant's person. (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1379-1380; CALCRIM No. 2501.) "A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating section [21310]." (People v. Rubalcava (2000) 23 Cal.4th 322, 332.) While accidentally carrying the weapon is a defense to the crime, the prosecution is not required to prove a specific intent to conceal. (Mitchell, at p. 1381.)
Defendant's prior uncharged incident with a concealed knife was relevant to prove knowledge that he knew the knives were capable of being used as stabbing weapons. Notwithstanding defendant's argument to the contrary, whether defendant knew the knives were capable of being used as stabbing weapons or that they were concealed was at issue. A "[d]efendant's not guilty plea put[s] in issue all of the elements of the offense[]" and even if an element of the crime is conceded by the defendant at trial, "the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent." (People v. Steele (2002) 27 Cal.4th 1230, 1243; see § 1019.) Additionally, defense counsel argued in opening, "[t]he question in this case is whether the types of knives were illegal." Defense counsel never stipulated to the knives' illegality in arguing against admitting the prior uncharged misconduct evidence. Also, the defense obtained on cross-examination Officer Hight's admission that the blue-handled knife could be a utility knife. Whether defendant knew the knives were the type of stabbing weapon prohibited by section 21310 was at issue, and his prior incident with a concealed dirk or dagger was relevant to prove the required knowledge.
The prior uncharged evidence was close in time and similar to the current offense. Involving conduct no more serious than the current offense, it carried no more than the inherent prejudice in any uncharged prior evidence. In light of the clear relevance of the evidence, it was not an abuse of discretion to admit it. Since the evidence was properly admitted, defendant's due process contention is also without merit. (See People v. Johnson (2015) 61 Cal.4th 734, 763 ["when evidence is properly admitted under the Evidence Code, there is no violation of due process"].) B. Unanimity Instruction
While the reason defendant offered for carrying the weapon in the prior incident, being a white person on Florin Road, is potentially more prejudicial, the statement is only tangential to the uncharged prior misconduct evidence, and defendant did not raise this ground at trial, forfeiting any contention regarding this statement. (People v. Nelson (2012) 209 Cal.App.4th 698, 711.)
Defendant contends the trial court erred in failing to give a unanimity instruction on which act constituted resisting a peace officer and which act constituted carrying a concealed knife.
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) This means each individual juror must be convinced, beyond a reasonable doubt, the defendant committed the specific offense with which he or she is charged. (Ibid.) "The requirement of unanimity as to the criminal act is intended to eliminate the danger the defendant will be convicted even though there is no single offense all the jurors agree the defendant committed." (People v. Zavala (2005) 130 Cal.App.4th 758, 768.)
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes, or the trial court must instruct the jury that it must unanimously agree the defendant committed the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132.) The unanimity instruction must be given sua sponte even if the defendant does not request the instruction. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
A unanimity instruction is not required, however, "where the criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct." (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.) "This is because in both cases, the multiple acts constitute one discrete criminal event." (Ibid.) " 'The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)
According to defendant, there were two separate acts that could have provided the basis for resisting a peace officer; his failing to stop when ordered when he was walking away from the officers, and his failure to stop when ordered when he later ran by the patrol car. As to the concealed weapon offense, defendant contends that the act of carrying the two knives, the blue-handled one and the all-metal homemade knife, constituted separate acts requiring a unanimity instruction as well.
1. Resisting a Peace Officer
Officer Hight testified on direct examination that he told defendant to stop as the patrol car approached the corner, just before the patrol car camera activated. On cross-examination, Officer Hight admitted that in a prior proceeding he stated that he had yelled at defendant to stop when he ran by the patrol car. The prosecutor argued in closing: "When did he take off? Well, he took off when police roll up really close to him. Right at the time that Officer Hight and Officer Boresz said, 'We yelled at him to stop.' " The prosecutor concluded: "By running, he willfully resisted and delayed Officer Michael Hight because they had to chase him around the block, that's the time you saw on the video, throw at least one knife over the fence. So that is resisting and delaying. That element is met."
Assuming that Officer Hight told defendant to stop when the patrol car first approached and later when defendant ran behind it, the prosecutor's closing argument effectively elected to rely on only the first instance as the act of resisting a peace officer. Also, as there was no break when defendant fled from the officers, the two acts are part of a continuous course of conduct. No unanimity instruction was called for.
2. Concealed Weapon
We come to the same conclusion regarding the carrying a concealed weapon charge. The trial court instructed the jury that in order to convict defendant on the concealed weapon charge, it had to unanimously agree that defendant carried at least one of the two weapons "and you all agree on which weapon he carried and when he carried it." The court also gave a unanimity instruction on the charge as follows: "Going back to count One, folks, carrying the concealed dirk or dagger, the People have presented evidence of more than one act, theoretically, that the defendant committed this offense. You can't find the defendant guilty unless you all agree that the People proved that defendant committed at least one of these acts and you all agree on which act he in fact committed. So there's evidence of two different knives, so that's why we give you this instruction."
The prosecution argued without objection that if six jurors found the blue-handled knife was concealed and six found the metal knife was concealed, then it could find defendant guilty. The prosecutor additionally argued that the evidence showed both knives were concealed.
Defendant asserts this instruction was insufficient because it only instructed the jury it must agree unanimously as to what act constituted the first element of the offense, but "did not instruct them that they must all agree on which act constituted the actual crime, i.e., which acts, if any, satisfied all of the elements of the offense." We disagree with defendant's narrow reading of the trial court's unanimity instruction. It informed the jury there was "evidence of more than one act, theoretically, that the defendant committed this offense" (italics added) and that the jury must unanimously agree as to which act he committed, in reference to the two knives. Read in context with the other instruction on the two knives referenced above, we find that the court instructed the jury it must unanimously agree on which knife, if any, defendant used to commit the concealed weapon crime. Nothing more was needed.
The prosecutor's erroneous argument that the jury could split on the two knives and reach a guilty verdict was not evidence requiring an additional unanimity instruction. Rather, it was prosecutorial misconduct that defendant forfeited by failing to object to the argument. (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.