Opinion
B333898
10-01-2024
THE PEOPLE, Plaintiff and Respondent, v. JUSTINO MARTINEZNOLASCO, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lindsay Boyd, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA506123, Terry A. Bork, Judge. Reversed and remanded with directions.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lindsay Boyd, Deputy Attorney General, for Plaintiff and Respondent.
MORI, J.
During a search of defendant and appellant Justino Martineznolasco's jail bed on March 3, 2022, a correctional officer located two metallic shanks. Appellant was charged and convicted of two counts of possessing a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)).
Subsequent references to statutes are to the Penal Code.
After reviewing the record, appellant's appointed counsel filed an opening brief asking this court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Following our review of the record, we requested additional briefing on the impact of People v. Rowland (1999) 75 Cal.App.4th 61 (Rowland), a case raised by counsel at appellant's sentencing hearing. In Rowland, the court analyzed the statute under which appellant was convicted, section 4502, subdivision (a). It held the defendant in that case "could not properly be convicted of more than one count . . . where he possessed [multiple] weapons of the same type at the same time." (Id. at p. 64.) In their supplemental briefing, both parties agree appellant should have been convicted of only one count under section 4502, subdivision (a), for the simultaneous possession of two weapons.
We agree with the parties. We affirm appellant's conviction on count 1, reverse his conviction on count 2, and remand for resentencing.
FACTUAL BACKGROUND
The facts of this case are undisputed. On March 3, 2022, Los Angeles County Sheriffs Department Deputy Nikolas Hernandez was working inside the Los Angeles County Men's Central Jail. Appellant, an inmate in the jail, was assigned to a numbered dormitory and bunk bed. After walking into the dormitory, Deputy Hernandez saw several blankets positioned in a manner that obscured his view of the inmates. Deputy Hernandez walked over to address the situation, referred to as "tenting."
While removing the blankets, Deputy Hernandez noticed a handwoven "hammock" made from a trash bag suspended above appellant's assigned bed. Inside the hammock were two "pointy metal" shanks. Appellant's jail wristband was also inside the hammock.
Appellant was located, handcuffed, and searched. When asked about the two shanks, appellant replied he was using them "to fix shoes." Deputy Hernandez's partner, Deputy Roberto Ortiz, testified each shank was designed for "puncturing" and "capable of inflicting significant or substantial injury."
Appellant called Henry Cervantez to testify in his defense. Cervantez had over 30 years of experience working in correctional institutions. When shown the objects recovered from appellant's bed, Cervantez agreed each could be used as a deadly weapon.
PROCEDURAL BACKGROUND
An information charged appellant with two counts of possessing a weapon (a shank) while confined in a penal institution on March 3, 2022 (§ 4502, subd. (a); counts 1-2). Following a jury trial in June 2023, appellant was convicted on both counts.
The court sentenced appellant to a two-year term of imprisonment on count 1, and a concurrent, two-year term of imprisonment on count 2. The court stayed all fines, fees, and assessments, and awarded appellant presentence custody credits. Appellant timely appealed.
Appointed counsel for appellant filed a Wende brief requesting an independent review of the record for any arguable issues on appeal. Following our review, we requested additional briefing on Rowland and whether appellant could be convicted of multiple counts under section 4502 for simultaneously possessing two weapons of the same kind. In his supplemental brief, appellant contends his "possession in prison of two sharped [ sic ] metal objects at the same time and place constitutes only one violation of section 4502, subdivision (a)." The Attorney General concedes the issue and admits the facts in Rowland "are indistinguishable from the facts in this case."
DISCUSSION
We agree with the parties that Rowland compels reversal of one of appellant's convictions.
Section 4502, subdivision (a), provides: "Every person who, while at or confined in 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 a blackjack, . . . or sharp instrument" is guilty of a felony. (Italics added; see also § 4502, subd. (b) ["penal institution" refers to prison and jail].)
In Rowland, the appellate court considered how section 4502, subdivision (a), applied to facts substantially similar to those in this case. The defendant in Rowland was convicted of three counts of violating section 4502, subdivision (a), after a correctional officer searched his belongings and found three sharpened objects. (Rowland, supra, 75 Cal.App.4th at p. 63.) The defendant's appointed appellate counsel filed a Wende brief requesting independent review for arguable issues on appeal. (Ibid.) During its review, the Rowland court analyzed the language of section 4502, subdivision (a). It found the term "any" as used in section 4502 "created an ambiguity in the statute so that the statute failed to provide a warning that separate convictions would result for each weapon simultaneously possessed." (Id. at pp. 64-65, citing People v. Kirk (1989) 211 Cal.App.3d 58, 65 (Kirk), superseded by statute as stated in Rowland, supra, at p. 65.) Because the statute prohibited the possession of "any" weapon, the court reasoned it could be construed as punishing the possession of a single weapon as reasonably as the possession of multiple weapons on a single occasion. (See id. at pp. 64-65.) The court applied the rule of lenity requiring the interpretation of an ambiguous statute in favor of a criminal defendant. (See Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 202 [rule of lenity applies when two reasonable interpretations of the same provision stand in relative equipoise].) The court concluded that section 4502, subdivision (a), permitted "only one conviction for [the] simultaneous possession" of weapons in prison. (Rowland, supra, at p. 65.)
The Rowland court found additional support in the "legislative action, or inaction as [was] the case" concerning section 4502. (Rowland, supra, 75 Cal.App.4th at p. 65.) The court noted the Legislature's response to another decision, Kirk, applying the rule of lenity to a statute proscribing the possession of "any instrument or weapon" commonly known as a sawed-off shotgun. (Kirk, supra, 211 Cal.App.3d at pp. 62, 65.) "In 1994, specifically in response to Kirk, the Legislature amended" the statutory scheme to clarify a violation of former section 12020 "'as to each firearm, weapon, or device . . . shall constitute a distinct and separate offense.'" (Rowland, supra, 75 Cal.App.4th at p. 65.) This legislative act was done "with the express intent of overruling the holding in . . . Kirk 'insofar as that decision held that the use of the term "any" in a weapons statute means that multiple weapons possessed at the same time constitutes the same violation.' (Stats. 1994, First Ex. Sess. 1993-1994, ch. 32, § 5.)" (Ibid.)
In Kirk, the court considered whether former section 12020, subdivision (a), which criminalized the possession of "any instrument or weapon of the kind commonly known as a . . . sawed-off shotgun," could be used to convict a defendant of two violations for the simultaneous possession of two shotguns "at the same time and place." (Kirk, supra, 211 Cal.App.3d at pp. 60-61.)
The Rowland court continued: "Conspicuously absent from [these provisions was] any mention of section 4502, subdivision (a), the statute at issue here." (Rowland, supra, at p. 65.) There was no indication the Legislature intended to include section 4502 within the class of offenses proscribing multiple violations for possessing multiple weapons simultaneously. As such, the court found "the Legislature intended to permit application of the Kirk holding to any statute not specifically listed" in the amended law. (Id. at p. 66.) "If the Legislature intends the word 'any' as used in section 4502 to have the same meaning as it does [in the amended statutes overruling Kirk,] it needs to say so." (Id. at p. 67.)
To date, the Legislature has not overruled or restricted Rowland in section 4502 or any related law. After Rowland, the Legislature amended section 4502 one time to incorporate the determinate sentencing law. (Stats. 2011, ch. 15 § 485.) That amendment did not substantively modify or alter the offense of unlawful possession. (See ibid.) The parties do not identify any amendment, and we are aware of none, clarifying the ambiguity identified in Rowland. "'Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it.' [Citations.] 'There is a strong presumption that when the Legislature reenacts a statute which has been judicially construed it adopts the construction placed on the statute by the courts.' [Citation.]" (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353, fn. omitted.)
Based on the foregoing, we conclude appellant was improperly convicted of more than one count of section 4502, subdivision (a), for simultaneously possessing the same kind of weapons while in a penal institution.
DISPOSITION
The conviction on count 1 is affirmed. The conviction on count 2 is reversed, and the matter is remanded for resentencing. Following resentencing, the trial court shall correct the abstract of judgment and forward a certified copy to the Department of Corrections.
We concur: CURREY, P. J. ZUKIN, J.