P. v. Mestas

Filed 10/11/06 P. v. Mestas 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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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A jury found defendant Juan Manuel Mestas guilty of assault with a deadly weapon (count one), and possession of a razor blade in a penal institution (count two), both serious felonies. As to count one, the jury found the allegation that defendant personally inflicted great bodily injury to be true, and as to both counts, the court found to be true allegations of a prior serious felony conviction. The court sentenced defendant to an aggregate term of 14 years, which included a five-year enhancement for the prior conviction.

On appeal, defendant contends the trial court erred in giving CALJIC No. 2.62, and in finding his prior juvenile court disposition to be a prior serious felony conviction under Penal Code^[1] section 667, subdivision (a).

The People concede error as to the second claim. We accept that concession and modify the judgment to strike the five-year enhancement for defendant’s prior juvenile adjudication. We shall otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, Michael Shamblin, had just arrived at Rio Cosumnes Correction Center (RCCC). Shamblin was then a member of the “Peckerwoods,” a white brotherhood. He displayed visible tattoos reading “100% Wood” (meaning “100 percent white”) and “WPWW” (meaning “White Pride Worldwide”) on his left forearm, as well as other related markings on his hands and fingers.

Shamblin was assigned to 448 north facility, 600 pod, along with 40 or so other inmates, some of whom were members of the Peckerwoods and other groups or gangs, such as the “Norteños” the “blacks,” and the “whites.”

The bunk Shamblin was assigned to was located above that assigned to the defendant. Shamblin introduced himself to defendant when he arrived and, because they where bunkmates or “bunkies,” saw defendant every time he got up and down off of his bunk.

Within the first 24 hours of his arrival at RCCC, Shamblin was working out in the pod with another inmate nicknamed “Country” (a member of the Nazi Low Rider white supremacist gang) and an African-American inmate named Avery. Defendant and another inmate, Hector Gomez, approached Shamblin. Defendant had his right hand out as if to “do a handshake.” Shamblin also put his hand out, but defendant reached past him and slashed Shamblin’s face with a razor blade. Defendant quickly “took off towards the bathroom.” When Shamblin went to reach for the emergency button to alert the guards, Gomez came up from behind him and started hitting him “nonstop.” At some point, Shamblin was able to push Gomez off him long enough to push the emergency button, and the two men continued to struggle until officers arrived. Shamblin noticed blood “pouring out” of his face from the cut.

Deputy Sheriff Brian Fall responded to the call that there was a fight in the north facility. When he arrived, he found Shamblin on his knees next to the pod door, holding his hands to his face, with blood seeping through his fingers. Gomez was on the ground about 10 feet away. Over the public announcement system, Fall heard another officer ordering inmates to their bunks, and ordering the two men fighting to the ground.

Shamblin identified the person who slashed him as his “bunkie” and told Deputy Fall that he thought his attackers were “Northerners.” Shamblin identified himself as a Peckerwood. Deputy Fall showed Shamblin a picture from a locater card for the inmate housed on the adjoining bunk -- defendant -- and Shamblin identified him as the slasher.

Deputy Fall handed Shamblin a rag and escorted him to the clinic to be treated.

Approximately 30 to 45 minutes later, Deputy Fall spoke with defendant, but did not notice any blood on him at that time. He escorted defendant from his bunk, past the doorway of the medical office, and into a holding cell.

Shamblin was eventually taken to the hospital, where doctors spent approximately an hour suturing his cuts. While there, Shamblin told Deputy Sheriff Latoya Buford that, just prior to the incident, he was working out and, when he looked over his shoulder, he saw “a Mexican guy” getting ready to give him what he thought was a high five, but instead he ended up getting slashed across the face. He told Deputy Buford he hit the emergency button and was being attacked by another “Mexican dude,” who came up and started “hitting on him” until officers arrived and broke up the fight. Shamblin told deputies that “the dude who sliced me ran back towards the bunks,” and that he was sliced by his bunkmate.

Officers conducted a search of the 600 pod for possible weapons. A razor blade was found in the bowl of one of the toilets in the bathroom. No razors were found in the bunk assigned to defendant.

Shamblin was later returned to RCCC, where he was placed in the medical unit for three to four days. While he was there, he received notes threatening him and members of his family.

On March 16, 2005, Shamblin told an investigator from the district attorney’s office that he had learned, two weeks after the incident, that he was attacked because “Country,” one of the inmates he was working out with that day, was a member of the Nazi Low Riders, a gang that associates with Sureño gang members.

Defendant was charged with assault with a deadly weapon and possession of a deadly weapon in a penal institution. The complaint alleged, as to count one, that defendant inflicted great bodily injury on the victim, and further alleged, as to both counts one and two, a serious prior felony conviction.

At trial, Shamblin testified that he knew what defendant looked like, observed him for approximately 10 seconds immediately preceding the slashing, and had no doubt that it was the defendant who slashed him. He confirmed that he was “100 percent sure” that defendant was the slasher. Shamblin also testified that he knew defendant was a “Northerner,” but had not had any problems with him prior to the incident. Although Shamblin told Deputy Fall, at the time of the incident, that he had seen a razor in defendant’s hand, he testified at trial that he never saw anything in defendant’s hand and simply inferred, from being cut, that defendant was holding a razor.

Deputy William Barnsdale, another officer who responded to the incident, testified that when the defendant was escorted past the medical office, Deputy Barnsdale was standing in the doorway and observed “a couple of flecks of what could be blood on the waistband of [defendant’s] orange-issued pants.” The spots were, according to Deputy Barnsdale, about “a quarter of an inch.” Deputy Barnsdale admitted that that information had not been included in his prior report, nor had he made any attempts to remove defendant’s clothing or secure them in any way for evidentiary purposes.

On direct examination, defendant testified that he had formerly been a member of the Barrio Centro (Norteño) gang beginning at age 14, and that he affiliated with gangs when he was sent to the California Youth Authority. However, he testified that he dropped out of the gang in March 2000 and was paroled from the California Youth Authority in November 2002.

Defendant further testified that, upon arriving at RCCC after violating his parole, other inmates asked him, “Where you from” (meaning, what gang are you affiliated with), and he told them, “I don’t bang.” Defendant stated that he first came into contact with Shamblin when defendant was returning to his assigned bunk and the two men discussed which bunk Shamblin was supposed to be sleeping in.

With regard to what happened at the time of the incident, defendant testified that he was on his bunk with a towel over his eyes trying to sleep. He became aware that something unusual was going on because the usually noisy pod became very quiet. Hearing a commotion, defendant sat up and saw two men, neither of whom he recognized, “scuffling” toward the pod door. An officer’s voice came over the loudspeaker telling everyone to go to their bunks. A few minutes later, he was called off of his bunk and informed he was being charged with the assault on Shamblin.

Defendant also testified that he could not identify any of the individuals who were part of the group of inmates hanging around asking him where he was from when he arrived at RCCC. He further testified that although he recognized Gomez as one of the inmates who was at 600 pod in September 2004, he did not hang around with him. When asked if he knew Gomez to be a Northerner, defendant replied, “No, I did not,” and further stated that it was unclear to him which inmates in the pod were gang members. Defendant also testified that he did not see the “100% Wood” tattoo on Shamblin’s forearm when he first met him by the bunk.

On further cross-examination, defendant testified that he heard the scuffle at the time of the incident and sat up to have a look around. From his bed, he saw people standing around, and saw two men “locked up on each other.” He saw “[q]uite a few people” walking away from the incident, but could not name any one individual, describing them generally as “a couple of people from every segment group.” When asked about the partition situated between his bunk and the bathroom door, defendant acknowledged that the partition blocked his view from the bed.

Following defendant’s testimony, and outside the presence of the jury, the court and counsel discussed jury instructions. No objection was made to CALJIC No. 2.62.

At the completion of trial, the court read the agreed-upon instructions to the jury, including CALJIC No. 2.62, as follows: “In this case defendant has testified to certain matters. If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. The failure of a defendant to deny or explain evidence against him doesn’t, by itself, warrant in inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. If a defendant doesn’t have knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence.”

CALJIC No. 17.31 was also read to the jury, as follows: “The purpose of the court’s instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I’m expressing an opinion as to the facts.”

The jury returned a verdict of guilty as to both counts, and found the special allegation of infliction of great bodily injury to be true. Defendant waived his right to a jury trial on the prior conviction allegations, and the court found those allegations to be true.

The court sentenced defendant to the middle term of three years as to count one, doubled as a result of the prior serious felony conviction, the middle term of three years as to count two, also doubled by the prior conviction but stayed pursuant to section 654, plus three years for the great bodily injury enhancement and five years for the prior conviction, for an aggregate term of 14 years in state prison.

Defendant filed a timely notice of appeal.

DISCUSSION

I

CALJIC No. 2.62

Defendant finds prejudicial error in the trial court’s instruction to the jury on CALJIC No. 2.62. We disagree.

An appellate court reviews a trial court’s instruction independently: The underlying “‘question is one of law, involving as it does the determination of . . . applicable legal principles . . . .’” (People v. Alvarez (1996) 14 Cal.4th 155, 217, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds.)

“The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.) If a defendant denies the charges and fully accounts for his whereabouts, CALJIC No. 2.62 should not be given merely because the defendant’s story contradicts the prosecution’s evidence. “[A] contradiction does not equate to a failure to explain or deny.” (People v. Kondor (1988) 200 Cal.App.3d 52, 57.) “However, if the defendant tenders an explanation which, while superficially accounting for his activities, nevertheless seems bizarre or implausible, the inquiry whether he reasonably should have known about circumstances claimed to be outside his knowledge is a credibility question for resolution by the jury.” (People v. Mask (1986) 188 Cal.App.3d 450, 455.)

Defendant claims his testimony was neither bizarre nor implausible in that “he merely testified that he was in his cell at the time of the slashing.” The People, however, claim several instances where defendant failed to explain things he should have been able to explain. First, the People claim that although defendant testified that he told several inmates he was no longer gang affiliated, he “could give neither the names nor descriptions of any of the inmates” he told he was not “banging anymore.” Because defendant also testified it was his first day at RCCC when he had those discussions, we do not find his inability to recall the specific names either bizarre or implausible.

The People next claim that defendant, “a self-admitted one-time gang member who easily recognized gang tattoos and markings, testified it was ‘unclear’ to him who were gang members in his POD.” While we agree that defendant’s answer is implausible given his history of gang affiliation and the fact that he himself has visible gang markings and tattoos, it does not constitute a failure to “explain or deny any evidence against him introduced by the prosecution” with regard to the charges against him. Defendant was charged with assault with a deadly weapon. The People introduced evidence that defendant was at the scene and committed the act. Defendant asserts as a defense that he was somewhere else (i.e., in his bunk with a towel over his eyes) when the incident occurred. While defendant’s testimony regarding his ability or inability to recognize gang members is certainly questionable, it is not related to whether he was in his bunk at the time of the attack and cannot therefore be characterized as a failure to deny or explain the evidence as to the crime charged.

According to the People’s third claim, defendant testified he was on his bunk at the time of the incident and would have been able to see the attack, but was unable to “describe the fight in detail or who was around watching the fight.” Specifically, the People argue that, despite defendant’s testimony that he saw other inmates walking away from the fight, he could “not name anyone,” and “could not even describe what they looked like.” The People are partially correct.

Defendant testified that he saw “[q]uite a few” inmates walking away from the incident from his vantage point on his bunk. However, he was unable to identify anyone by name and, when asked to describe them, he simply replied, “There was a couple of people from every segment group walking away from the TV.” Given defendant’s testimony that he specifically sat up in his bunk to see what was going on, his failure to identify even one individual he saw walking away from the incident seems rather implausible.

Defendant did, however, testify as to the details of the portion of the incident he says he saw. On cross-examination, defendant testified that the pod got very quiet and, when he heard a scuffle, he sat up to have a look around. He then saw Shamblin and Gomez “locked up on each other, like in a bear hug, just not really -- they weren’t -- neither one of them were swinging, but they were just like going around a little bit.” He also testified the two men were near the pod door, both standing up. He described Shamblin and Gomez as being “at an arm’s distance from each other with hands on them, holding each other up, and kind of like going in a little -- like a circular motion.” He noted that neither man was throwing punches, and it appeared they were each trying to keep the other one off. That testimony seems to be plausible and is consistent with defendant’s story that he was in his bunk, at least during the part of the attack involving Gomez.

However, what at first blush seems plausible becomes questionable in light of further testimony from the defendant. He initially testified that he observed the scuffle and saw inmates walking away from the fight from his bed. However, when asked about the partition situated between his bunk and the bathroom door, he admitted that the partition blocked his view, changing his story to testify that he was able to see what was happening because he got up and leaned over that partition. That inconsistency calls into question his defense and renders his denial somewhat suspect.

However, even assuming, for the sake of argument that the instruction should not have been given, any error was harmless, because it is not “reasonably probable a more favorable result would have been reached had the instruction been omitted.” (People v. Kondor, supra, 200 Cal.App.3d at p. 57.) “CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt.)” (People v. Ballard (1991) 1 Cal.App.4th 752, 756.) The text of CALJIC No. 2.62 itself protects against any potential prejudice by instructing that “[t]he failure of the defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.” (CALJIC No. 2.62.)

Any potential prejudice was further lessened by the court’s instruction pursuant to CALJIC No. 17.31, empowering the jury to disregard any instruction that applies to facts the jury determined did not exist. We may consider CALJIC No. 17.31 in assessing the prejudicial effect of the improperly given CALJIC No. 2.62. (People v. Saddler, supra, 24 Cal.3d at p. 684.)

Finally, there was ample evidence supporting guilt. Shamblin, the victim, testified that he had approximately 10 seconds to observe the defendant as he approached, and was “100 percent sure” that it was the defendant who slashed him across the face.

On this record, the court’s instruction pursuant to CALJIC No. 2.62 does not require reversal.

II

Erroneous Imposition Of Five-Year Enhancement

Defendant contends, and the People concede, that defendant’s 1998 conviction for assault with a firearm, a juvenile court disposition, cannot be used to impose a prior serious felony conviction enhancement under section 667, subdivision (a)(1). We accept that concession and strike the five-year enhancement imposed for that prior conviction.

DISPOSITION

The judgment is modified to strike the five-year enhancement for defendant’s prior juvenile court disposition, and the trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

ROBIE , J.

We concur:

NICHOLSON , Acting P.J.

MORRISON , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.