Opinion
A155767
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. DERRICK MCLEROY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. Nos. 229151, 227473)
Defendant Derrick McLeroy appeals from a judgment of conviction after a jury found him guilty of unlawful use of tear gas and of possession of a tear gas weapon by a convicted felon. He also appeals from an order revoking his probation in another case following these convictions. He argues substantial evidence does not support either conviction and the revocation of his probation was thus improper. The People brought a sentencing error to our attention. We remand for resentencing but otherwise affirm.
BACKGROUND
McLeroy entered a convenience store in San Francisco. He took food but told the cashier he could not pay, so the cashier asked him to leave. McLeroy became upset and left the store, but he returned moments later with a "small container" in his hand. He pointed the container at the cashier's face and "push[ed] one time, two time[s]," causing the container to emit a liquid "spray" that hit the cashier's face and right eye. The liquid caused pain, a burning sensation, redness, swelling, and watery eyes, and the cashier was unable to see. The pain and burning sensation intensified for up to two hours before they began to subside, but the cashier still felt the effects the next day.
Four hours later, McLeroy entered a drug store in San Francisco. He was "creating a disturbance," so the manager asked him to leave. McLeroy became "aggravated" and pointed what looked like a small lighter at the manager's face. He pressed it with his fingers, causing it to emit a liquid "stream" that hit the manager's face and eyes. As the manager turned his head to avoid the stream, McLeroy followed his movement, "trying to target" his face. The manager was in "agony" and felt like his face was "on fire." He could not see, the pain lasted for over an hour, and he still felt some of the effects the next day. The container McLeroy used in both attacks was not recovered.
The district attorney filed an information charging McLeroy with second degree robbery (Pen. Code, § 211; count I); unlawful use of tear gas or a tear gas weapon (§ 22810, subd. (g)(1); count II); and possession and use of tear gas or a tear gas weapon by a convicted felon (§ 22810, subd. (a); count III). The information alleged McLeroy had a prior felony assault conviction (§ 245, subd. (a)(4)) and violated his probation for the assault by committing the charged crimes (§ 1203, subd. (k)). A jury convicted McLeroy on the tear gas crimes alleged in counts II and III but could not reach a verdict on the robbery. The court sentenced McLeroy to state prison, suspended execution of the sentence, and placed him on probation. Following the tear gas convictions, the court found McLeroy violated his assault probation and revoked it. McLeroy timely appealed the convictions and the probation revocation.
Undesignated statutory citations and references are to the Penal Code.
DISCUSSION
I. Sufficiency of the Evidence
McLeroy argues the evidence was insufficient to justify either of his convictions. The standard of review we apply is familiar: " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Here, McLeroy was convicted on count II of unlawful use of tear gas or a tear gas weapon. McLeroy argues the evidence was insufficient to support the conviction because "[a]bsent the physical device which [he] possessed and used . . . , it was not possible for the jury, as instructed, to determine whether or not it was a 'form of device . . . intended for the projection or release of tear gas' or that the liquid released from such device was 'intended to produce temporary physical discomfort.' " We disagree. The People presented ample evidence for the jury to conclude McLeroy used tear gas or a tear gas weapon.
Tear gas is any "liquid, gaseous or solid substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispersed in the air" (§ 17240). A tear gas weapon is any "device . . . intended for the projection or release of tear gas" (§ 17250, subd. (b)) or any "cartridge . . . capable of being discharged" to "cause or permit the release or emission of tear gas" (§ 17250, subd. (a)). Both the convenience store cashier and the drug store manager testified that after McLeroy became upset with them, he pointed a handheld device at their faces, and when he pushed on the device, it emitted a liquid that hit them in the face and one or both eyes. The cashier testified it was a spray; the manager testified it was a stream. For both, the liquid caused pain, a burning sensation, and temporary blindness, and the effects lasted to some degree until the next day. "It is well settled that 'unless the testimony is physically impossible or inherently improbable, [the] testimony of a single witness is sufficient to support a conviction.' " (People v. Ghobrial (2018) 5 Cal.5th 250, 281.) Even without the device or evidence of the liquid's chemical composition, the uncontradicted testimony sufficed to permit the jury to infer the liquid was tear gas and the device used to emit the liquid was a tear gas weapon.
The defense did not present evidence after the People rested.
McLeroy disputes this conclusion, arguing the device "could have been . . . a spray bottle [containing] some other liquid, such as soap, hair spray, or [a] cleaning agent . . . ." While that is possible, "[w]hether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal [is] whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Towler (1982) 31 Cal.3d 105, 118.) " '[W]here the jury rejects the hypothesis [of] innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses, this court is bound by the finding of the jury.' " (Ibid.)
We reach the same conclusion as to count III, possession of a tear gas weapon by a convicted felon. The conclusion that McLeroy used a tear gas weapon inevitably leads to the conclusion that he possessed a tear gas weapon, since he held the device in his hand during both attacks. McLeroy stipulated that he was a convicted felon. Substantial evidence supports a reasonable inference that McLeroy knew he possessed a tear gas weapon. After using the device to spray the convenience store cashier in the face, and observing the physical discomfort caused by the liquid the device emitted, McLeroy similarly attacked the drug store manager four hours later. He pointed the device at the manager's face, repeatedly targeting his face as he tried to avoid the stream, then used the device to emit the same liquid, which caused similar discomfort.
McLeroy cites People v. Taylor (1935) 4 Cal.App.2d 220, 222-223 (Taylor) in arguing "it was essential to prove that the defendant knew that the cartridges in his possession contained and were capable of emitting the substance known as tear gas. Knowledge thereof constitutes part of the corpus delicti. Such knowledge cannot be presumed; it must be established as a fact by competent evidence. . . ." Taylor is inapposite. "Neither the statute nor [Taylor] requires that an accused know the chemical nature or makeup of the substance or that it constitutes 'tear gas,' as long as he [or she] knows that it is intended to 'produce temporary physical discomfort . . . through being . . . dispersed in the air.' [Citation.]" (People v. Autterson (1968) 261 Cal.App.2d 627, 631.) Furthermore, as the People persuasively argue, even if McLeroy "did not know he possessed a tear gas weapon [when] attacking [the cashier], he certainly did after the fact. The jury reasonably could have concluded his attack on [the cashier] informed him of the nature of the device he held when he confronted and sprayed [the manager] a few hours later." Here the evidence showed McLeroy used the same weapon twice to commit similar crimes within a short period. Each time he directed the weapon at the victim's face, where it would have maximum impact. If he did not know the weapon's character during the first attack, then the first attack was sufficient to inform him of the weapon's character for use in the second attack.
Autterson interpreted former section 12401, which section 17240 continues without substantive change. (Cal. Law Revision Com. coms., Deering's Ann. Pen. Code, § 17240, p. 588.) --------
II. Sentencing on Count III
The People point out that the court erred by imposing a felony sentence, instead of a misdemeanor sentence, for McLeroy's conviction of possession of a tear gas weapon by a convicted felon. McLeroy agrees, and so do we. The information charged McLeroy in count III with possession and use of tear gas or a tear gas weapon by a convicted felon. But the court instructed the jury only on possession, not use, and the verdict form referenced only possession, not use. While the use of tear gas or a tear gas weapon by a convicted felon is punishable as a felony (§§ 22810, subd. (g)(1), 17, subd. (a)), the possession of tear gas or a tear gas weapon by a convicted felon is punishable only as a misdemeanor (§§ 22900, 17, subd. (a)). "A court is without authority to impose a sentence not prescribed by statute." (In re Andrews (1976) 18 Cal.3d 208, 212.) Since the jury found McLeroy guilty of unlawful possession and not unlawful use of a tear gas weapon, the felony sentence was error and remand is necessary so the court can "impose the punishment prescribed." (§ 12.)
DISPOSITION
The matter is remanded to the superior court with direction to modify the judgment to reflect that McLeroy's conviction on count III, possession of a tear gas weapon by a convicted felon under Penal Code section 22810, subdivision (a), is a misdemeanor, and for resentencing accordingly. The judgment and the court's order of October 12, 2018, revoking McLeroy's probation are otherwise affirmed.
/s/_________
Siggins, P.J.
WE CONCUR:
/s/_________
Fujisaki, J.
/s/_________
Jackson, J.