Opinion
A147735 A148259
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. WAYMOND EARL STARRITT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1402647, CR1502869)
In this consolidated appeal, defendant Waymond Earl Starritt appeals a judgment entered on a single sentence following his convictions in two separate jury trials. In the first case, he was found guilty by a jury of possession for sale of heroin (Health & Saf. Code, § 11351) (count one) and carrying a concealed dirk or dagger (Pen. Code, § 21310) (count two); as to count one, the trial court found true allegations that he had three prior convictions within the meaning of Health and Safety Code section 11370.2, subdivision (a). In the second case, Starritt was found guilty by a jury of resisting an executive officer (Pen. Code, § 69) (count one) and carrying a concealed dirk or dagger (id., § 21310) (count two); as to both counts, the trial court found true the allegation that Starritt had committed the offenses while on bail in the first case (id., § 12022.1). The trial court imposed sentence in both matters, sentencing Starritt to a total unstayed term of 15 years eight months, which included three consecutive three-year sentence enhancements pursuant to Health and Safety Code section 11370.2, subdivision (a). Pursuant to Penal Code section 1170, subdivision (h), the court imposed a split sentence of three years in local custody, followed by 12 years eight months on mandatory supervision.
Starritt appeals, raising two issues. First, he contends that there was insufficient evidence in both cases that the knives he was carrying were concealed within the meaning of Penal Code section 21310. Second, he contends that the trial court erred in imposing two sentence enhancements under Health and Safety Code section 11370.2, subdivision (a) relating to prior convictions comprising a single course of criminal conduct. We shall reject the first argument and find that there was substantial evidence to support both convictions for possession of a concealed dirk or dagger. As to the second issue, after briefing was completed, the Legislature amended Health and Safety Code section 11370.2, thereby repealing the sentence enhancements imposed by the trial court under the circumstances presented here. Because we conclude that amendment applies retroactively to Starritt's sentence, we reverse his sentence and remand the matter to the trial court with directions to strike the section 11370.2 enhancements and to resentence Starritt.
Starritt also filed a petition for writ of habeas corpus, which raises a claim of ineffective assistance of counsel in the first case. We have disposed of the habeas petition by separate order filed this day. (Cal. Rules of Court, rule 8.387(b)(2)(B).)
FACTUAL BACKGROUND
The parties are familiar with the evidence and the procedural background. We recite only those limited facts necessary to our decision.
A. The First Case (A148259)
At 2:57 a.m. on May 25, 2014, Eureka Police Officer Ben Omey was on vehicular patrol when he saw a person walking across the intersection of B and Sixth Streets. Omey testified that the person, later identified as Starritt, appeared to answer the description of one Jason Evenson, for whom a warrant had been issued. Officer Omey had a copy of Evenson's booking photo in his patrol car.
Officer Omey approached Starritt and asked if he was Evenson. Starritt said no, but claimed that Evenson was his cousin. Starritt identified himself by name.
As the two men talked at a distance of less than six feet, Officer Omey saw about three inches of what appeared to be a knife handle protruding from the interior left pocket of Starritt's jacket. Officer Omey did not see the knife handle when he was approaching Starritt. Telling Starritt to "remain still," the officer removed the knife from inside the jacket and placed it on the ground. The knife was approximately eight inches long in a sheath with a fixed blade that was later measured as four and one-half inches. Officer Omey asked Starritt why he was carrying a knife. He replied, "I gotta protect myself."
Officer Omey searched Starritt. He observed a pair of gloves protruding from Starritt's outer jacket pocket. In the gloves the officer found a brown tar-like substance approximately the size of a golf ball wrapped in plastic. Officer Tomey testified that, based on his training and experience, the substance appeared to be heroin. The officer also found $620 in cash—one $100 bill, the rest in $20 bills—in Starritt's pants pocket. He did not locate any drug paraphernalia on Starritt.
Officer Stanley Harkness, who performed a field test on the substance, determined that it was 25.2 grams of heroin. Based on Officer Harkness's training and experience and prior expert testimony, the court, without objection from the defense, recognized him as an expert in the area of drug possession and sales. Based on the size of the heroin wad and Starritt's possession of a substantial amount of cash, Officer Harkness opined that Starritt possessed the heroin for purposes of sale. The officer estimated that the heroin had a street value of at least $2,500.
California Department of Justice criminalist Kristina Spiller was recognized by the court, again without objection from the defense, as an expert in the area of testing controlled substances. She testified that she had tested the substance seized from Starritt and confirmed that the substance was heroin and weighed 24.453 grams.
The jury found Starritt guilty of possession for sale of heroin (Health & Saf. Code, § 11351) (count one) and carrying a concealed dirk or dagger (Pen. Code, § 21310). In a bifurcated court trial, the court found true the allegations as to Starritt's prior convictions.
B. The Second Case (A147735)
At about 12:30 a.m. on June 20, 2015, Eureka Police Officer Beau Southwell was on routine vehicular patrol in the vicinity of A and Church Streets, a high-crime area. When he observed a person later identified as Starritt walking eastward on Church Street, the officer stopped within 5 to 10 feet of Starritt, stepped out of the car, and said to Starritt, "[h]ey, what's going on, man?" Starritt immediately turned and walked away from the officer, placing his hands in his jacket pockets. Fearing for his safety, Officer Southwell said, "Can you take your hands out of your pockets for me?" Starritt immediately started to run away from the officer. Officer Southwell ran after Starritt.
After Officer Southwell and Starritt had run about 20 to 30 yards, the officer testified he saw Starritt throwing what appeared to be knives on the ground with his left hand. The officer testified that he saw Starritt's shoulder move as he used his hand to pull the knives from some location on his person. The officer had not seen the knives during his initial contact with Starritt.
The officer tackled Starritt after he discarded the knives. As Starritt lay face down, Officer Southwell ordered Starritt to put his hands behind his back so that the officer could handcuff him. Starritt did not comply. A physical altercation ensued, during which Starritt punched Officer Southwell twice in the face, breaking his nose. Starritt then broke away from Officer Southwell and ran west on Church Street. Two other officers then came to Officer Southwell's assistance. After further resistance on Starritt's part and a continued physical altercation with the officers, he ultimately was subdued and handcuffed.
Officer Southwell returned to the area where he had seen Starritt throw the knives on the ground, and told the other officers the knives were there. They were photographed and booked into evidence. Officer Southwell testified that they looked like throwing knives.
The jury found Starritt guilty of resisting an executive officer (Pen. Code, § 69) (count one) and carrying a concealed dirk or dagger (id., § 21310) (count two), but did not find true the allegation that he had inflicted great bodily injury on the officer. In a court trial, the trial court found true the allegation pursuant to Penal Code section 12022.1 that Starritt was released from custody on bail at the time he committed the new offenses.
C. The Sentence
With Starritt's agreement, the trial judge in the second case sentenced Starritt in both cases on February 3, 2016. In the earlier-filed case, the court sentenced Starritt to the upper term of four years for possession for sale of heroin, to consecutive terms of three years on each of the three prior convictions, and to a concurrent midterm of two years for concealing a dirk or dagger. In the second case, the court sentenced Starritt to a consecutive term of eight months for resisting an executive officer, to a concurrent midterm of two years for carrying a dirk or dagger, and to a consecutive term of two years for the on-bail allegation. The total unstayed term is 15 years eight months. Pursuant to Penal Code section 1170, subdivision (h), the court imposed a split sentence of three years in local custody, followed by 12 years eight months on mandatory supervision. These timely appeals followed, and this court ordered the cases consolidated on appeal.
DISCUSSION
I. There Was Substantial Evidence In Both Cases That Starritt Carried A Concealed Dirk Or Dagger Upon His Person.
Starritt was found guilty in both cases of violating Penal Code section 21310. Starritt argues that there was insufficient evidence in either case that the knives he was carrying were "concealed" within the meaning of section 21310. We disagree.
A. Applicable Principles
Penal Code section 21310 provides in pertinent part that "any person in this state who carries concealed upon the person any dirk or dagger is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170." A "dirk" or "dagger" means "a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death." (Pen. Code, § 16470.)
"Penal Code section 21310 makes it a criminal offense to carry 'concealed upon the person any dirk or dagger.' The origins of the statute can be traced to 1917, when the Legislature enacted a statute that prohibited possessing several types of dangerous weapons ' "commonly associated with criminal activity" ' [citation], including 'a blackjack, slungshot, billy, . . . metal knuckles, [or] bomb,' and carrying 'a dirk or a dagger.' [Citations.] In 1923, the law was changed to prohibit carrying a dirk or dagger only if it was 'concealed upon his person.' [Citation.]" (People v. Castillolopez (2016) 63 Cal.4th 322, 327.) The unlawful carrying of a concealed dirk or dagger is a general intent crime. (People v. Rubalcava (2000) 23 Cal.4th 322.)
"A defendant need not be totally successful in concealing a dirk to be guilty of violation" of Penal Code section 21310. (People v. Fuentes (1976) 64 Cal.App.3d 953, 955 (Fuentes).) "Only substantial concealment is required." (People v. Wharton (1992) 5 Cal.App.4th 72, 75 (Wharton); see generally CALCRIM No. 2501 [defining elements of crime to include that "[i]t was substantially concealed on the defendant's person"].) A knife carried in a sheath and worn openly suspended from the waist of the wearer is not concealed. (People v. Mitchell (2012) 209 Cal.App.4th 1364, 1371 [discussing former Penal Code section 12020(d)]; CALCRIM No. 2501.)
We review a conviction challenged for insufficiency of the evidence under a familiar standard. " 'In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.' [Citations.] 'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.' [Citations.]" (People v. Brown (2014) 59 Cal.4th 86, 105-106.)
B. A148259
As to the first case, Starritt argues that the knife was not substantially concealed because "Almost Half of it Was Immediately Visible" to the arresting officer. Starritt also argues that because the knife was "readily visible" to the officer, it "did not pose the safety threat the statue [sic] is designed to combat." In our view, his arguments do not merit serious consideration.
As discussed above, it has long been established that Penal Code section 21310 (and its predecessor, former section 12020(a)(4)) does not require that a dirk or dagger be entirely concealed, but only that it be "substantially concealed." (Fuentes, supra, 64 Cal.App.3d at p. 955.) Thus, in Fuentes, the court rejected the defendant's argument that there was no evidence to show that the dirk was concealed, observing that it was in his waistband and that "[t]he mere fact that some portion of the handle may have been visible makes it no less a concealed weapon." (Ibid.) Similarly, in Wharton, supra, 5 Cal.App.4th 72, the court rejected the defendant's contention there was insufficient evidence of concealment because the tip of the knife was protruding from his pocket. (Id. at p. 75.) The court stated that the jury was permitted to examine the knife, which was approximately seven and three-eighths inches long, and that the evidence showed that "only one and one-half to two inches of the blade were protruding from defendant's pocket." (Ibid.) These facts, the court stated, supported a finding of substantial concealment. (Ibid.; see also People v. Koehn (1972) 25 Cal.App.3d 799, 802 [officer looking through car windshield saw "handle of a pistol lying on the floorboard"]; People v. Linden (1960) 185 Cal.App.2d 752, 757 [officer using a flashlight recognized the "butt of a revolver protruding from beneath two pillows" in car].)
Effective in 2012, former Penal Code section 12020, subdivision (a)(4) was renumbered as section 21310 without substantive change. (People v. Mitchell, supra, 209 Cal.App.4th at p. 1369, fn. 1.)
Starritt suggests that it would be a "more workable and more fair" rule for courts to determine whether a weapon was "sufficiently visible as to put the officer on notice." He cites People v. Hale (1974) 43 Cal.App.3d 353, which held that "concealment of an essential component of a visible weapon, when done in such a fashion as to make the weapon readily available for use as a firearm, presents a threat to public order comparable to concealment of the entire firearm and falls within the prohibition of [former] section 12025." (Id. at p. 356.) But Hale supports the Attorney General's position, not Starritt's, because it is undisputed that the entire blade of the knife—surely "an essential component" of the weapon—was concealed inside his jacket. Here, the knife was in the inside front pocket of Starritt's jacket, making it readily available for use as a weapon, whether or not it was entirely or partially concealed. Starritt would only have had to reach into his jacket pocket to use the knife.
Starritt argues that the knife was not concealed because the officer "knew almost immediately" after observing its handle that Starritt was carrying a knife, so that from the point of view of one approaching him, it was not concealed. We are not persuaded. The fact that a trained police officer was able to determine from viewing a protruding handle that defendant was probably carrying a knife does not mean that it was not substantially concealed. Nor does it mean that all passersby necessarily would be similarly alerted. As one court observed in rejecting a closely similar argument, "[t]his assertion is unsupported by the statutory language, authority, or common sense. Whether or not a trained officer can recognize a gun case from outside a car, if the driver is carrying a gun inside that case so that the gun cannot be seen from outside the car the gun is plainly 'concealed.' " (People v. Hodges (1999) 70 Cal.App.4th 1348, 1355.)
In our view, the instant case is indistinguishable from Fuentes and Wharton. No reported authority supports Starritt's contention that "a more specific factual inquiry is necessary to determine whether the weapon was in fact concealed," such as by comparing the percentage of the length of the weapon that was visible. Starritt does not propose a mathematical formula that would supply the answer to that question, or that would meaningfully distinguish Wharton, where "only 20% to 27% of the knife was visible," according to him, from the instant case, where "more than a third of the knife (37.5%) was visible," according to the arresting officer. Such an approach would be nonsensical and impossible to administer.
As with myriad other statutes that employ the same or similar terms, the determination of what is "substantial" within the meaning of Penal Code section 21310 is a factual determination committed to the jury. Indeed, the jury in this case made just such a determination—favorably to Starritt—when it found that although Starritt broke the officer's nose, he did not thereby inflict on him "great bodily injury," a term that is defined to mean "a significant or substantial physical injury." (Pen. Code § 12022.7, subd. (f), italics added; see People v. Cross (2008) 45 Cal.4th 58, 64 ["This court has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury"].) Whether a defendant carried a dirk or dagger substantially concealed upon his person, like any other element of the statute, presents a factual issue for determination by the trier of fact. In asking us to second-guess the jury's finding, Starritt would have us ignore the controlling substantial evidence standard. That we may not do.
C. A147735
Starritt's argument as to the second case is no more persuasive. He contends that the jury's finding that the knives were substantially concealed was speculative because the arresting officer only observed Starritt briefly and "had no idea where the knives were coming from." That contention again improperly asks us to reweigh the evidence heard by the jury and the inferences it could have reasonably drawn from that evidence.
The evidence presented at trial included undisputed testimony that: (1) Starritt was wearing a jacket and immediately put his hands in his jacket pockets after Officer Southwell approached him; (2) the officer did not see any knives on Starritt during their initial encounter, when they were between 5 and 10 feet apart; (3) while the officer was pursuing Starritt, he saw Starritt's shoulder move as he apparently used his left hand to pull out the knives from some location on his person; and (4) he then saw Starritt throwing the knives on the ground. The three knives themselves were recovered and introduced into evidence, but no mention was made of any sheaths or scabbards having been observed or recovered. Viewing the evidence in the light most favorable to the judgment, the conclusion that Starritt had the knives concealed somewhere on his person under his clothing is, if not inescapable, certainly one that the jury reasonably could have drawn based on the evidence it heard at trial. It is immaterial that the officer was unable to observe exactly where in his clothing or on his person Starritt had secreted the knives. We again decline Starritt's invitation to reweigh the evidence and set aside the jury verdict, which was supported by substantial evidence.
II. Starritt's Sentence Must Be Reversed In Light Of The Recent Amendments To Health and Safety Code Section 11370.2.
The trial court imposed three consecutive three-year sentence enhancements pursuant to Health and Safety Code section 11370.2, subdivision (a), for a total of nine years. At the time of sentencing, section 11370.2, subdivision (a) mandated the imposition of such enhancements where, as here, a defendant convicted of certain drug-related offenses had suffered prior convictions of similar offenses:
Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.(Stats. 1998, ch. 936, § 1.) However, the Legislature subsequently enacted and the Governor signed into law Senate Bill 180. (Sen. Bill No. 180 (2017-2018 Reg. Sess.), Stats. 2017, ch. 677, § 1.) Effective January 1, 2018, that legislation eliminated all but one of the qualifying prior convictions for which such a sentence enhancement is authorized. The amended statute provides that the sentence enhancements shall apply only where the defendant was previously convicted of the crime of using a minor in the commission of the prior offenses in violation of Health and Safety Code section 11380. Section 11370.2, subdivision (a) currently provides:
Any person convicted of a violation of, or of a conspiracy to violate, Section 11351, 11351.5, or 11352 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section 11380, whether or not the prior conviction resulted in a term of imprisonment.
In supplemental briefing Starritt contends the Health and Safety Code section 11370.2, subdivision (a) enhancements must be stricken in light of this recently-enacted legislation. The Attorney General recently conceded the point in a case involving subdivision (c) of the same statute, and at oral argument offered a similar concession here. (People v. Millan (2018) 20 Cal.App.5th 450, 454.) For the reasons summarized below, we agree.
Former section 11370.2, subdivision (c) mandated, in nearly identical language to that of former subdivision (a), that any person convicted of a violation of certain drug-related offenses receive a consecutive three-year sentence enhancement for specified drug-related prior convictions. (Stats. 1998, ch. 936, § 1.) Like subdivision (a), it was amended to repeal the enhancement for all such prior offenses, other than those in which a minor was used to commit the prior offense. (Health & Saf. Code § 11370.2, subd. (c).)
In re Estrada (1965) 63 Cal.2d 740, created a limited exception to the ordinary rule that statutes apply prospectively where "the Legislature amends a statute so as to lessen the punishment" mandated for the commission of a prohibited act. (Id. at p. 745.) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citations.]" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Thus, "ordinarily it is reasonable to infer for purposes of statutory construction the Legislature intended a reduction in punishment to apply retroactively." (Id. at p. 308, fn. 5.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792 [defendant whose sentence was not final on effective date was entitled to benefit of statute increasing amount of loss required for enhancement]; see, e.g., People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091 [amended statute granting trial court discretion to strike firearm enhancement applied retroactively]; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679 [same].)
We agree with our colleagues in the Fourth Appellate District, Division 1 that Estrada applies in this case and that the recent amendment to Health and Safety Code section 11370 requires the reversal of Starritt's sentence. (People v. Millan, supra, 20 Cal.App.5th at p. 455.) On remand, the trial court is directed to strike the Health and Safety Code section 11370.2, subdivision (a) enhancements and to resentence Starritt.
In light of our resolution of this issue, we need not address Starritt's original challenge to the trial court's imposition of the section 11370.2 enhancements. Accordingly, we deny Starritt's motion asking us to take judicial notice of the opinion and record of the appeal from his prior convictions as unnecessary to our decision.
DISPOSITION
Starritt's sentence is reversed and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2, subdivision (a) enhancements and to resentence Starritt. In all other respects, the judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.