P. v. Jackson

Filed 3/9/06 P. v. Jackson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Elbert Jackson, a prison inmate, assaulted his cellmate with a weapon fashioned out of a piece of plastic and razor blade. The jury convicted him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); unspecified section references that follow are to the Penal Code), specifically finding that defendant used a deadly weapon in the commission of this offense.

This appeal centers on the court's response to a jury question about the order of deliberations. The court replied by stating that the jury could not consider the lesser charge of simple assault before acquitting on the charged greater offense. Defendant contends this response was erroneous. He also raises a related claim of ineffective assistance of counsel, asserting his attorney should have objected to this instruction.

We agree that the court's reply to the jury's question was erroneous, but conclude that the error was harmless. Because defendant cannot demonstrate prejudice, his claim of ineffective assistance of counsel necessarily fails as well. We therefore affirm the judgment.

Facts and Proceedings

In September 2002, correctional officers discovered razor blades in defendant's possession.

Six months later, in March 2003, defendant was handcuffed for a transfer to a different cell to be shared with inmate Thomas. In keeping with prison protocol, correctional officers handcuffed Thomas through the cell's tray slot before opening the cell door. The correctional officer ordered Thomas to the back of the cell, away from the door, while the cell door was opened. The officer placed defendant in the cell, closed the cell door, and then removed defendant's handcuffs through the tray slot.

Before Thomas could come over to the tray slot to have his handcuffs removed, defendant pulled something out of the waistband of his shorts and rushed Thomas, knocking him to the floor. As Thomas lay handcuffed on the floor, defendant struck and slashed him with the object.

Guards emptied three canisters of pepper spray into the cell in an attempt to stop the attack. Defendant finally came over to the door as ordered by the guards, but he first threw the object into the toilet and flushed.

The victim was taken to the infirmary where he was treated for multiple lacerations. None required stitches.

Prison officials looked in the plumbing trap behind the cell's toilet and found a piece of plastic, perhaps from a toothbrush, with a razor blade attached.

An information charged defendant with the unlawful possession of a sharp instrument (§ 4502, subd. (a)--count 2), and assault with a deadly weapon or by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1)--count 3.) The information included an allegation that the assault was a serious felony within the meaning of section 1192.7, subdivision (c)(23) in that defendant personally used a dangerous and deadly weapon. The information also charged defendant with possession of razor blades in connection with the September 2002 incident (§ 4502, subd. (a)--count 1), and charged that defendant had suffered two prior convictions for serious felonies.

At trial, the prosecution argued that the evidence supported a conviction on count 3 under either of two theories, namely, that defendant utilized a deadly weapon in assaulting Thomas, or that defendant utilized force likely to produce great bodily injury by knocking the victim to the ground while he was handcuffed. Defense counsel did not dispute that the assault occurred, but argued that the implement used by defendant was not a deadly weapon.

The trial court instructed the jury on the crime charged in count 3, assault with a deadly weapon, and also instructed on the lesser included offense of simple assault.

During its deliberations, the jury sent a question to the trial judge asking for clarification on one point. The jury asked, â€