Opinion
B296814
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIKA THOMAS, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven E. Mercer and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA465303) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Garcia, Judge. Affirmed in part, reversed in part, and remanded. Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven E. Mercer and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Erika Thomas of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), carrying a loaded, unregistered handgun (§ 25850, subd. (a)), and possession of a stun gun by a felon (§ 22610, subd. (a)). The jury found true the allegations that defendant had a prior conviction under section 245, subdivision (a)(1) and that defendant had served a prior prison term. The trial court concluded that the prior section 245, subdivision (a)(1) conviction was a prior serious felony (§ 1170.12, subd. (a)-(d)) and thus constituted a strike within the meaning of the Three Strikes law. The court sentenced defendant to four years imprisonment.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that there was insufficient evidence to support her conviction for possession of a stun gun and the trial court's conclusion that defendant had a prior strike conviction. The Attorney General concedes the latter argument. We will reverse the true finding for the prior serious felony conviction enhancement and remand for further proceedings. We otherwise affirm.
II. BACKGROUND
A. Procedural History
On October 16, 2018, the Los Angeles County District Attorney (District Attorney) charged defendant by information with: possession of a firearm by a felon, a felony (count 1); carrying a loaded, unregistered handgun, a felony (count 2); and possession of a stun gun by a felon, a misdemeanor (count 4). The information alleged that defendant had previously sustained a conviction for felony assault pursuant to section 245, subdivision (a)(1), which qualified as a serious felony under sections 1170.12, subdivisions (a) to (d) and 667, subdivisions (b) to (j), and had also sustained a conviction for transportation or sale of a controlled substance pursuant to Health and Safety Code section 11352, for which defendant served a prior prison term, as described in section 667.5, subdivision (b).
On February 1, 2019, a jury found defendant guilty of all three counts. On February 4, 2019, the jury found true the allegations that defendant had suffered the prior convictions and had served the alleged prior prison term.
On February 14, 2019, the trial court sentenced defendant to the middle term of two years for count one and doubled that term to four years pursuant to section 1170.12, based on the court's conclusion that defendant had sustained a prior strike. For count two, the court sentenced defendant to the middle term of two years, doubled to four years pursuant to section 1170.12, to be served concurrently. The court struck the section 667.5, subdivision (b) enhancement for counts one and two. For count four, the court sentenced defendant to 180 days in any penal institution to be served concurrently with count one. B. Trial on Substantive Counts
Section 667.5, subdivision (b) has since been amended such that a defendant will receive a one-year enhancement for a prior separate prison term only if the defendant was convicted of a sexually violent offense pursuant to Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.)
On February 1, 2018, Los Angeles Police Department officers Catherine Durant and Carlos Valdez saw a car with expired registration parked on the street. Defendant was sitting in the driver's seat. The officers approached and spoke to defendant, who acknowledged that the car's registration was expired.
After engaging in further conversation with defendant, Durant found a handgun under the driver's seat. The handgun had 10 rounds of live ammunition and was unregistered. Durant also found, on the driver's seat, an object that looked like a pink cell phone. Durant observed her partner Valdez and another officer operate the object. Durant testified, "They pressed a button and it made the electrical Taser sound." Durant also observed sparks emitting from the top of the object.
Durant testified that she had been a police officer for 24 years and had been trained on "what a stun gun is." She explained that a Taser could be used as a stun gun if the cartridge that contained the dart was removed. She continued: "What makes it a stun gun, is if you make contact with a human being, it will stun them, it will shock them, it will hurt them." Durant did not know the voltage of the object that she found. She explained that the amount of voltage that "comes out" of an object did not dictate whether the object was a stun gun; "any amount of voltage can be a stun gun." Durant testified that the object she found was a stun gun. C. Trial on Prior Conviction
As relevant to this appeal, the prosecution presented evidence in the form of an electronic printout of defendant's criminal record from the California Law Enforcement Telecommunication System, which reflected that on July 15, 2005, during a change of plea hearing, defendant pled guilty to one count of violating section 245, subdivision (a)(1). The prosecution did not introduce a reporter's transcript or other record of the hearing. Nor did it introduce an abstract of judgment of defendant's July 15, 2005, conviction. The jury found true the allegation that defendant had sustained a conviction for violating section 245, subdivision (a)(1).
III. DISCUSSION
A. Sufficiency of Evidence for Possession of Stun Gun
Defendant contends there was insufficient evidence to support the guilty verdict on count four, possession of a stun gun by a felon. "When a defendant challenges the sufficiency of the evidence, '"[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citations.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We '"'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" [Citation.]'" (People v. Clark (2011) 52 Cal.4th 856, 942-943; accord, People v. Brooks (2017) 3 Cal.5th 1, 57.)
Section 22610, subdivision (a) prohibits a felon from possessing "any stun gun." Section 17230 defines a "stun gun" as "any item, except a less lethal weapon, used or intended to be used as either an offensive or defensive weapon that is capable of temporarily immobilizing a person by the infliction of an electrical charge." "'Immobilize' is defined as 'to make immobile,' as 'to prevent freedom of movement or effective use of,' or 'to reduce or eliminate motion of (the body or a part) by mechanical means . . . .' (Merriam-Webster's Collegiate Dict. (11th ed. 2004) p. 621, col. 1 . . . .) 'Immobile,' in turn, is defined as 'incapable of being moved,' or 'not moving.' (Ibid.)" (In re Branden O. (2009) 174 Cal.App.4th 637, 641 [discussing § 244.5, assault with a stun gun].)
Substantial evidence supports the verdict. Durant testified that she observed her colleagues press a button on the object, which caused the emission of sparks from the top of the object and the production of a "Taser sound." Durant also testified about her training on stun guns, which she described as objects that would "stun," "hurt," and "shock." Finally, Durant testified the object she found was a stun gun.
Defendant, however, contends that because Durant did not specifically state that the object was capable of temporarily immobilizing a person, the evidence was insufficient to prove that the object was a stun gun. We disagree. Durant testified that the object was a stun gun, an item that would "stun," "hurt," and "shock" a person. That she did not specifically use the word "immobilize" does not render her testimony insufficient.
Defendant also argues that Durant's testimony was insufficient because she did not know the voltage of the object and testified that "any amount of voltage can be a stun gun." Durant testified that the object produced sparks and "the electrical Taser sound." "Although it is true that the officer did not know the precise specifications of the stun gun . . . [she] provided sufficient foundation for [her] opinion about its capability." (In re Branden O., supra, 174 Cal.App.4th at p. 643.) The jury could reasonably infer from Durant's experience, her training on stun guns, and her observation of the object producing sparks and the sound of a Taser, that the object in defendant's possession was capable of immobilizing a person with an electrical charge. "The question is not whether immobilization was actually caused (although that is probative of the stun gun's capabilities), but whether the device at issue was capable of producing that result." (Id. at p. 642.) B. True Finding of Prior Serious Felony Conviction
Defendant also contends that the true finding of a prior serious felony conviction is unsupported by the evidence. The Three Strikes law defines the term "serious felony" as including "assault with a deadly weapon." (§ 1192.7, subd. (c)(31); People v. Gallardo (2017) 4 Cal.5th 120, 125.) In 2005, when defendant sustained her assault conviction, section 245, subdivision (a)(1) provided: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be" guilty of this crime. (Stats. 2004, ch. 494, § 1.) "If defendant committed assault with a deadly weapon, the prior conviction counted as a strike; if she committed assault by any means of force likely to produce great bodily injury, it did not." (People v. Gallardo, supra, 4 Cal.5th at p. 125.)
"[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense." (People v. Delgado (2008) 43 Cal.4th 1059, 1066.) The Attorney General concedes, and we agree, that the record in this case is silent as to whether defendant pled guilty to committing assault with a deadly weapon or assault by means of force likely to produce great bodily injury. Thus, there was insufficient evidence to support a true finding that defendant was convicted of a serious felony pursuant to sections 667, subdivisions (b) to (i), and 1170.12, subdivisions (a) to (d). We will reverse the true finding of a strike under the Three Strikes law. The District Attorney may retry defendant on the strike allegation. (People v. Anderson (2009) 47 Cal.4th 92, 102.)
IV. DISPOSITION
The true finding that defendant had a serious felony conviction pursuant to sections 667, subdivisions (b) to (i) and 1170.12 subdivisions (a) to (d) is reversed. Upon remittitur, the matter is remanded for further proceedings consistent with this opinion. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.