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People v. Thomas

California Court of Appeals, Second District, First Division
Feb 17, 2011
No. B223038 (Cal. Ct. App. Feb. 17, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. No. VA108508 Daniel S. Murphy, Judge.

Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael Keller and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.


MALLANO, P. J.

Defendant Ramile Lajon Thomas appeals from the judgment entered following a jury trial in which he was convicted of battery by a state prisoner upon a non-confined person in violation of Penal Code section 4501.5. Defendant contends that insufficient evidence supports his conviction, his attorney provided ineffective assistance, the court failed to fully instruct on his theory of defense, and he did not knowingly and voluntarily admit a prior strike conviction allegation. We reverse based upon ineffective assistance by trial counsel.

BACKGROUND

Defendant’s prior offense

On January 18, 2007, defendant pleaded nolo contendere to one count of sodomy by force and admitted a Penal Code section 12022.8 great bodily injury allegation. The trial court sentenced defendant to 11 years in prison. It committed him to the Department of Corrections and Rehabilitation, with directions, pursuant to Welfare & Institutions Code section 1731.5, subdivision (c), to house him in a facility run by the Department of Juvenile Facilities (DJF) until he turned 18. (All further statutory references pertain to the Welfare and Institutions Code unless otherwise specified.)

The case on appeal

The offense charged in the case giving rise to this appeal occurred on June 27, 2008, while defendant was housed in the Southern Youth Correctional Reception Center and Clinic in Norwalk, which is a DJF facility. Based upon a report from another correctional counselor, Youth Correctional Counselor Hector Zamora decided that defendant would not be allowed to go to dinner, but would instead eat in his room. Zamora asked his colleague Nora Stickley to direct defendant to go to his room. Defendant initially refused Stickley’s order, but eventually walked to his room, while continuing to argue with Stickley. When Zamora walked toward defendant’s room, defendant walked away from his room and toward Zamora. Zamora threatened to spray defendant with mace. Defendant entered his room, then turned and struck Zamora’s chest three times with closed fists. Defendant also struck a glancing blow on Zamora’s face.

Defendant was charged with violating Penal Code section 4501.5. The jury convicted defendant as charged. The court and counsel apparently believed defendant had waived a trial on and admitted a prior strike conviction allegation and failed to either obtain an admission or conduct a trial on the allegation. The court sentenced defendant to a second strike prison term of four years, consecutive to the term he was already serving.

DISCUSSION

1. Sufficiency of evidence

Penal Code section 4501.5 provides, “Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively.”

Penal Code section 4504 defines “confined in state prison” for purposes of Penal Code section 4501.5: “A person is deemed confined in a ‘state prison’ if he is confined in any of the prisons and institutions specified in [Penal Code] Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections or the Department of the Youth Authority, regardless of the purpose of such confinement and regardless of the validity of the order directing such confinement, until a judgment of a competent court setting aside such order becomes final.” (Pen. Code, § 4504, subd. (a).) In addition, “A person is deemed ‘confined in’ a prison although, at the time of the offense, he is temporarily outside its walls or bounds... for any other purpose for which a prisoner may be allowed temporarily outside the walls or bounds of the prison, but a prisoner who has been released on parole is not deemed ‘confined in’ a prison for purposes of this chapter.” (Pen. Code, § 4504, subd. (b).)

Defendant contends there was insufficient evidence he was a person confined in a state prison because he “was serving his sentence under a judgment committing him to the custody of the Department of Corrections and Rehabilitation, Southern Youth Correctional Reception Center.”

To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)

Defense counsel and the prosecutor stipulated that defendant “was serving a sentence in the state prison at the time of this incident, ” and the jury was so instructed. This stipulation required the jury to accept that defendant was a person confined in a state prison. Defendant’s sufficiency of evidence claim has no merit.

2. Ineffective assistance of counsel

Defendant contends that his attorney’s stipulation that he was serving a sentence in the state prison at the time of this incident constituted ineffective assistance. The Attorney General’s brief, while arguing that defendant was confined to a state prison, implicitly conceded the applicability of an alternate statute, Welfare and Institutions Code section 1768.8, subdivision (a), by arguing that if this court reversed the judgment, the District Attorney should be permitted to charge defendant with a violation of section 1768.8, subdivision (a). Defendant’s reply brief then argued that section 1768.8, subdivision (a), not Penal Code section 4501.5, applied to his conduct.

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561 (Jones).) The defendant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.) In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.) Counsel’s exercise of discretion over trial strategy must nevertheless be founded upon reasonable investigation and preparation, and it must be reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Jones, at pp. 564–565.) “To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333.)

Absent the applicability of Welfare and Institutions Code section 1768.8, subdivision (a), we would likely conclude that defense counsel was not ineffective for stipulating that defendant was confined in a state prison, in that defendant had been committed to the Department of Corrections and Rehabilitation-not the Division of Juvenile Justice. Accordingly, defendant was under the jurisdiction of the Department of Corrections and Rehabilitation, and was arguably temporarily housed at a DJF facility pursuant to section 1731.5, subdivision (c), and was thus “confined to prison” within the scope of Penal Code sections 4501.5 and 4504. In addition, counsel had a rational tactical purpose for entering into a stipulation, which was to prevent the prosecutor from following through with her plan to introduce evidence of the nature of defendant’s conviction, which the court indicated it would permit. Defendant’s sodomy by force or fear conviction was both inherently prejudicial and likely to undermine counsel’s theory of defense, which was that defendant had complied with Stickley’s orders but was then provoked by a bullying, brutish officer (Zamora).

Section 1768.8, subdivision (a) provides, “An assault or battery by any person confined in an institution under the jurisdiction of the Department of the Youth Authority upon the person of any individual who is not confined therein shall be punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both a fine and imprisonment.” (From July 1, 2005, all references to the “Department of the Youth Authority” refer to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (§ 1710, subd. (a).)) We agree with the parties that section 1768.8, subdivision (a) applies to defendant’s offense.

“‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.’” (In re Williamson (1954) 43 Cal.2d 651, 654 (Williamson).) This rule is designed to ascertain and carry out legislative intent. (People v. Jenkins (1980) 28 Cal.3d 494, 505.) It applies where “‘“each element of the ‘general’ statute corresponds to an element on the face of the ‘specific’... statute” or “it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute.”’” (People v. Walker (2002) 29 Cal.4th 577, 585.) Where the rule applies, prosecution under the more general statute is prohibited if the general statute provides a more severe penalty, unless it is clear that the Legislature intended to permit prosecution under either statute. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250.)

In this context, the more general statute is Penal Code section 4501.5, which applies to all inmates confined in an institution that is under the jurisdiction of the Department of Corrections and Rehabilitation, while Welfare and Institutions Code section 1768.8, subdivision (a) applies only to inmates confined in an institution that is under the jurisdiction of the DJF (a subdivision within the Department of Corrections and Rehabilitation). Each element of Penal Code section 4501.5 corresponds to an element of section 1768.8, subdivision (a), although the latter also includes assault, while the former pertains only to battery. A violation of Penal Code section 4501.5 is a felony with possible sentences of two, three, or four years, which is a more severe penalty than prescribed for violating section 1768.8, subdivision (a), which is a misdemeanor. Section 1768.8 was enacted in 1984, and subdivision (a) has never been amended; Penal Code section 4501.5 was enacted in 1959 and most recently amended in 1978. Nothing in either statute suggests the Legislature intended to permit prosecution under Penal Code section 4501.5 of inmates to whom Welfare and Institutions Code section 1768.8, subdivision (a) applies. Thus, under the Williamson rule, defendant was subject to prosecution only under the more specific statute, section 1768.8, subdivision (a).

Defense counsel knew that the charged offense was committed in the DJF facility in which defendant was housed. Just before jury selection began, she sought to “clarify” the stipulation to state that defendant “was in a California Youth Authority facility as opposed to a state prison.” But she did not assert that defendant was subject to prosecution only under Welfare and Institutions Code section 1768.8, subdivision (a), not Penal Code section 4501.5. Her failure to do so under the circumstances of this case fell below an objective standard of reasonableness. Given the more severe treatment of a violation of Penal Code section 4501.5, as compared to a violation of section 1768.8, subdivision (a), defendant had everything to gain, and nothing to lose from attempting to obtain a ruling by the trial court that he was not subject to prosecution under Penal Code section 4501.5. Thus, there simply could be no satisfactory explanation for counsel’s failure to assert that defendant was subject to prosecution only under section 1768.8, subdivision (a), not Penal Code section 4501.5. Given the parties’ agreement on appeal that section 1768.8, subdivision (a) applied to defendant’s offense, the applicability of the Williamson rule, and the less severe penalties under section 1768.8, subdivision (a), it is more than reasonably probable that defendant would have obtained a more favorable result if defense counsel had not stipulated that defendant was confined in a state prison and had instead asserted that he was subject to prosecution only under Welfare and Institutions Code section 1768.8, subdivision (a), not Penal Code section 4501.5. Accordingly, we conclude that defendant’s constitutional right to the effective assistance of counsel was violated.

Rather than reversing defendant’s conviction, we exercise our power under Penal Code section 1260 to modify the judgment to reflect conviction of a lesser, necessarily included offense established by the evidence: misdemeanor battery. (Pen. Code, § 242.) This modification was requested by the Attorney General, and was not opposed by defendant. Although the Attorney General also requested that the prosecutor be “given an opportunity to either accept the reduction or charge” defendant with a violation of Welfare and Institutions Code section 1768.8, subdivision (a), the Attorney General failed to cite any authority requiring this court to give the prosecutor the opportunity to remedy the charging error that led to the problem addressed in this appeal.

3. Instruction upon self-defense

Defendant also contends that the trial court failed to fully instruct upon his theory of defense by omitting one paragraph from CALCRIM No. 2723. CALCRIM No. 2723 sets forth the elements of a violation of Penal Code section 4501.5. In pertinent part, the version of CALCRIM No. 2723 given to defendant’s jury stated, “The defendant is charged in Count 1 with battery on someone who was not a prisoner in violation of Penal Code section 4501.5. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully touched Hector Zamora in a harmful or offensive manner; [¶] 2. When he acted, the defendant was serving a sentence in a California state prison; [¶] AND [¶] 3. Hector Zamora was not serving a sentence in state prison; AND [¶] 4. The defendant did not act in self-defense.” The optional paragraph defendant contends the trial court erroneously admitted states, “A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive.” Although the trial court did not include that paragraph in the written instruction, it read it to the jury in court, followed immediately by CALCRIM No. 2671, which informed the jury that a custodial officer was “not lawfully performing his or her duties if he or she is using unreasonable or excessive force, ” and “[i]f a custodial officer uses unreasonable or excessive force while restraining a person, that person may lawfully use reasonable force to defend himself or herself.” The trial court also instructed with CALCRIM No. 3470, which pertains to self-defense.

Defendant’s theory regarding the necessity of the optional paragraph is that the evidence “called into question” whether Zamora was engaged in the lawful performance of his duty during the incident giving rise to the charged offense because it was unclear whether, at the time Zamora ordered defendant to miss dinner as a disciplinary sanction, Zamora had already been informed by the other correctional counselor of defendant’s prior misconduct.

The lawful performance of duty does not appear to be an element of a violation of Penal Code section 4501.5. The jury was not instructed that the victim had to be an officer engaged in the lawful performance of his duty. It was instead instructed that the victim could not be a fellow inmate. Whatever the merits of defendant’s theory might have been with respect to the Penal Code section 4501.5 charge, the theory has no bearing upon the simple battery conviction resulting from our disposition on appeal. We further note that the jury was fully instructed upon self-defense and its relationship to the charge through CALCRIM Nos. 3470, 2723, and 2761. In order to convict defendant of violating Penal Code section 4501.5, the jury necessarily found that he “did not act in self-defense.” (CALCRIM No. 2723.) Accordingly, we conclude that neither error nor prejudice resulted from the omission of the optional paragraph from CALCRIM No. 2723 in the set of written instructions provided to the jury.

Given our disposition, defendant’s contention regarding the validity of his admission of the strike allegation is moot because the Three Strikes law is inapplicable where the current offense is a misdemeanor. We simply vacate the trial court’s finding on the strike allegation.

DISPOSITION

The judgment is modified to reflect a conviction of battery under Penal Code section 242. The true finding on the allegation under Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) is vacated. As modified, the judgment is affirmed and the matter is remanded for resentencing in accordance with Penal Code section 243, subdivision (a).

Pursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk of this court is directed to send a certified copy of this opinion to the State Bar.

We concur: ROTHSCHILD, J., CHANEY, J.


Summaries of

People v. Thomas

California Court of Appeals, Second District, First Division
Feb 17, 2011
No. B223038 (Cal. Ct. App. Feb. 17, 2011)
Case details for

People v. Thomas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAMILE LAJON THOMAS, Defendant…

Court:California Court of Appeals, Second District, First Division

Date published: Feb 17, 2011

Citations

No. B223038 (Cal. Ct. App. Feb. 17, 2011)