P. v. Pacely
Filed 7/19/13 P. v. Pacely CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DANTE PACELY,
Defendant and Appellant.
D062198
(Super. Ct.
Nos. SCD232317,
SCD238863)
APPEAL from
a judgment of the Superior Court
of
County, Esteban Hernandez, Judge. Affirmed as modified with directions.
Cynthia M.
Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Theodore M.
Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
Dante Pacely appeals from a judgment convicting him of
appear offense. He argues the judgment
in the firearm case must be reversed due to instructional error. We find no error in this regard.
Pacely also
challenges the trial court's calculation of conduct credits for his presentence
custody. We conclude the trial court's
calculation was incorrect, and modify the judgment to award the correct amount
of conduct credits. As so modified, the
judgment is affirmed.
FACTUAL
AND PROCEDURAL BACKGROUND
On February 19, 2010, Pacely was in a
vehicle stopped by the police. The owner
of the car (Pacely's girlfriend) was driving and Pacely was in the front
passenger seat. During a search of the
vehicle's glove compartment, the police found ammunition inside a sock and a
loaded gun with the safety off hidden behind the compartment's rear panel. Forensic testing excluded Pacely's girlfriend
as a contributor to the DNA mixture on the gun, and provided inconclusive
results for gunshot residue on her hands.
For Pacely, the testing showed that he was a possible major contributor
to the DNA mixture on the gun, with the random probability of such a match
being 1 in 24 million for Caucasians, 1 in 2.4 million for African-Americans,
and 1 in 100 million for Hispanics.
Also, the testing revealed gunshot residue on Pacely's hand that showed
he had exposure to the residue from firing or handling a gun, touching a
surface where a gun had been, or being in a room where a gun was discharged.
Pacely was
charged with: (1) count 1, possession of
a firearm by a person convicted of a felony (former Pen. Code,
12021, subd. (a)(1)); (2) count 2, carrying a loaded firearm in a vehicle (§
12031, subd. (a)(1)); (3) count 3, causing a firearm to be carried concealed in
a vehicle occupied by the person (§ 12025, subd. (a)(3)); and (4) count 4,
possession of ammunition by a person convicted of a felony (§ 12316, subd.
(b)(1)). The count 2 firearm-carrying
offense and the count 3 concealed-firearm offense were elevated to felony
charges based on allegations that Pacely had previously been convicted of a
felony. (§§ 12031, subd. (a)(2)(A);
12025, subd. (b)(1).)
The jury
convicted Pacely of the counts 1 and 4 firearm and ammunition possession
offenses and the count 3 concealed-firearm offense and found the count 3
felony-elevating allegation true. The
jury deadlocked on the count 2 firearm-carrying offense, and this count was
dismissed.
Pacely was
released on his own recognizance during trial, and after he failed to appear
for the reading of the jury verdict, he was arrested and charged with failure
to appear. He pled guilty to this
offense. He also admitted a prison prior
and a strike prior that were alleged as enhancements in the firearm case.
The trial
court sentenced Pacely for both the firearm and failure to appear cases,
imposing a total prison term of six years four months. For the firearm case, the sentence consisted
of four years on count 1 and a consecutive one-year term for the prison prior,
with the terms on the remaining counts stayed.
For the failure to appear offense, he received a 16-month consecutive
sentence.
DISCUSSION
I. Claim
of Instructional Error
Pacely
argues the standard instruction provided to the jury for count 1 possession of
a firearm by a felon (CALCRIM No. 2510) improperly told the jury that it could
consider prior conviction evidence as propensity evidence. He asserts the instruction in effect told the
jurors that they could infer that he possessed the firearm during the charged offense
based on the evidence that he had previously been convicted of a firearm
possession offense (a 2008 offense for carrying a concealed firearm in a
vehicle).
Several of
the allegations against Pacely required proof that he had previously been
convicted of a felony. That is, the
People had to prove his prior felony conviction as an element of the count 1
possession of a firearm by a felon and the count 4 possession of ammunition by
a felon. Also, the People had to prove
his prior felony conviction for the felony-elevating allegations based on a
previous felony conviction that were attached to the count 2 firearm-carrying
offense and the count 3 concealed-firearm offense.
To prove
Pacely's prior felony conviction for purposes of these allegations, the jury
was provided with documents that identified his previous conviction in 2008 for
carrying a firearm concealed in a vehicle by a person who is an active gang
participant (§ 12025, subds. (a)(1), (b)(3)). Also, the jury was instructed on the prior
conviction allegations relevant to the four counts.
For the
count 1 firearm possession by a felon, the jury was provided an instruction
(based on the standard language in CALCRIM No. 2510) which stated in relevant
part:
"The defendant
is charged in Count One with unlawfully possessing a firearm in violation of
Penal Code section 12021(a)(1). [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1.
The defendant possessed a firearm; [¶] 2. The defendant knew that he possessed a
firearm; [¶] AND [¶] 3. The defendant
had previously been convicted of a
felony. [¶] . . . [¶]
Two or more people may possess something at the same time. [¶] A
person does not have to actually hold or touch something to possess it. It is enough if the person has control over
it or the right to control it, either personally or through another
person. [¶] You may consider evidence, if any, that the
defendant was previously convicted of a
crime only in deciding whether the People have proved this element of the crime.
Do not consider such evidence for any other purpose." (Italics added.)
As we shall
explain, Pacely's contention of instructional error is premised on the latter
portion of the count 1 firearm possession instruction, which set forth limiting
language that admonished the jurors about the narrow purpose of the prior
conviction evidence.
name="_ftnref2" title="">[2]
For the
felony-elevating allegations for the counts 2 and 3 offenses, the jury was
instructed that it had to decide if the People had proven that Pacely was
previously convicted "of the crime of Penal Code section
12025(a)(1)/12025(b)(3)." This
instruction on these allegations also included limiting language, telling the
jury that it should consider the prior conviction evidence only when deciding
whether Pacely had incurred
the prior conviction, and it should not consider the
evidence for any other purpose.
name="_ftnref3" title="">[3]
In
reviewing a claim the trial court's instructions were incorrect or misleading,
we inquire whether there is a reasonable likelihood the jury misunderstood and
misapplied the instructions. (
668, 777.) We consider the instructions
as a whole and the entire record, including counsels' arguments, and assume the
jurors are intelligent persons capable of understanding and correlating the
instructions. (People v. Lopez (2011) 198 Cal.App.4th 698, 708.)
Pacely's
claim of instructional error is based
on the language from CALCRIM No. 2510 (for the count 1 offense of felon firearm
possession) which stated: "You may
consider evidence, if any, that the defendant was previously convicted of a crime only in deciding whether the People
have proved this element of the
crime." (Italics added.) He asserts that it is reasonably likely the jury
interpreted the reference to "this element" to mean the
1. Accordingly, he posits the jury was
improperly told that it could consider his prior conviction involving firearm
possession as propensity evidence supporting that he committed the charged
firearm possession offense. The
contention is unavailing because there is no reasonable likelihood the jury
interpreted the instruction in this fashion.
The jury
knew from the instruction for count 1 (CALCRIM No. 2510) that this count
(firearm possession by a felon) included the element that: "defendant
had previously been convicted of a felony." (Italics added.) To prove this element, the prosecution
submitted evidence showing that Pacely had incurred a prior felony conviction
for carrying a firearm concealed in a vehicle.
The limiting language in CALCRIM No. 2510 referred to this prior
conviction evidence (i.e., evidence that "defendant was previously convicted of a crime"), and then told
the jury that it could consider the prior conviction evidence only to prove
"this element" of the crime.
(Italics added.) The prior
conviction evidence was directly and clearly relevant to the prior conviction
element. Because it was obvious that the
prior conviction evidence was relevant to the prior conviction element, and
there was nothing directing the jurors to consider the prior conviction
evidence for any other purpose, reasonable jurors would have understood that
the reference to "this element" meant the prior conviction element
that was listed in the instruction and that required precisely the type of
evidence represented by the prior conviction
evidence.
This
conclusion is buttressed by the other instructions provided to the jury as well
as the prosecutor's closing arguments to the jury. The limiting instruction provided for the
counts 2 and 3 felony-elevating allegations likewise told the jury that it could
consider the prior conviction evidence only to prove that Pacely had incurred
the conviction and for no other purpose.
Thus, the concept that the prior conviction evidence was relevant solely
to allegations that required proof of a
prior conviction was reinforced by the instruction for the counts 2 and 3
felony-elevating allegations. Aware of
this limited use for the prior conviction evidence, the jury would not likely
have construed the reference to "this element" in the count 1
instruction as referring to anything other than the prior conviction element of
the felon firearm possession offense.
Further, in
closing arguments the prosecutor referred to the prior conviction
People needed to prove the prior conviction because it was an element of counts
1 and 4 and it constituted the felony-elevating allegations for counts 2 and
3. The prosecutor did not suggest to the
jury that Pacely's prior conviction could be used to infer that he possessed
the gun during the charged offense.
To support
a contrary conclusion, Pacely argues that the jury likely thought "this
element" meant the possession, not the prior conviction, element because
the paragraphs immediately preceding the limiting language discussed the
possession element. We are not
persuaded. Considering the instructions
and closing arguments as a whole, the jury knew that the prosecution had
submitted evidence of Pacely's prior conviction to prove the prior conviction
element for counts 1 and 4 and the felony-elevating allegations for counts 2
and 3. Reading the count 1 instruction
in this context, the jurors would have comprehended that "this
element" meant the prior conviction element.
There is no
reasonable likelihood the jury interpreted the reference to "this
element" to mean the possession, rather than the prior conviction,
element. Pacely's contention of
instructional error fails.
name="_ftnref4" title="">[4]
II. Conduct
Credits
Pacely had two periods of custody prior to
sentencing which totaled 374 days of actual custody. His first period of custody was for 271 days,
from February 19, 2010 (the date he committed and was arrested for the
firearm-related offenses), until November 16, 2010 (the date he was released
from prison after serving a parole revocation term for the firearm-related
offenses). After his release, he was
charged with the firearm-related offenses and was allowed to remain free on his
own recognizance (OR) pending trial. His
second period of custody occurred after he failed to appear in the
firearm-related case for the reading of the jury verdict on December 7, 2011,
and the court issued a no-bail warrant for his arrest. He was in custody for 103 days, from January
16, 2012 (when he was arrested for failing to appear) to April 27, 2012 (when
he was sentenced for both the original firearm-related offenses and the
subsequent failure to appear offense).
The trial court ordered Pacely to
serve a five-year sentence for the firearm case, and a consecutive 16-month
sentence for the failure to appear case.
The trial court awarded a total of 430 custody credits against his
sentence in the firearm case, consisting of:
(1) 374 actual custody days; and (2) 56 conduct credits based on the 15
percent limitation set forth in section 2933.1, which sets this limit for
certain statutorily-specified violent felonies.
The Attorney General concedes, and we agree, the trial court's use of
the 15 percent formula for the conduct credits was incorrect because Pacely's
convictions are not encompassed within section 2933.1.
Although the parties agree the
court's calculation of conduct credits was incorrect, they do not agree on the
correct amount of conduct credits.
Accordingly, we now turn to this issue.
Relevant Statutes
Under
section 2900.5, subdivision (a), a defendant is entitled to a credit against
his or her term of imprisonment based on the time spent in custody prior to
being sentenced for an offense. The custody credit is provided (1) for
time actually served in custody, and (2) for worktime/good behavior
"conduct credit" pursuant to section 4019. (People
v. Dieck (2009) 46 Cal.4th 934, 939 & fn. 3; § 2900.5, subd. (a).) Under section 2900.5, subdivision (b),
custody credits are available for presentence custody attributable to the
conduct underlying the offense for which the defendant is being sentenced. (See People
v. Duff (2010) 50 Cal.4th 787, 793.)
Further, when the defendant was in custody for multiple offenses and
receives consecutive sentences for these offenses, the defendant may receive
the actual custody and conduct credits only once. (§ 2900.5, subd. (b).)
The formula for awarding conduct
credits authorized by section 4019 has been repeatedly changed in recent
years. (See People v. Brown (2012) 54 Cal.4th 314, 318 & fn. 3.) Relevant here, effective January 25, 2010,
section 4019, subdivision (f) provided for conduct credits at a rate of 100
percent (i.e., two days of conduct credit for every two days of actual
custody), with some exceptions. Under
one of these exceptions, a defendant who had certain statutorily-specified
prior serious felony convictions received conduct credits at a lower 50 percent
rate (i.e., two days of conduct credit for every four days of actual
custody). (See Historical and Statutory
Notes, 51C Pt. 1 West's Ann. Pen. Code (2011 ed.) foll. § 4019, p. 149;
385, 395; see also People v. Dieck, supra,
46 Cal.4th at p. 939; People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 48.)
In 2011, section 4019, subdivision (f) was amended to award conduct
credits at a rate of 100 percent without the prior serious felony conviction
exception. (Historical and Statutory
Notes, 51C Pt. 1 West's Ann. Pen. Code, supra,
foll. § 4019, p. 154.) However, section
4019, subdivision (h) provides that the 2011 amendment awarding 100 percent
conduct credit applies only prospectively to confinement for crimes committed
on or after October 1, 2011. (
Cal.App.4th at pp. 51-52.)
The parties have addressed the
issue of the correct amount of conduct credits in their original briefs and in
two supplemental briefs requested by
this court. Ultimately, the parties
agree that due to Pacely's commission of
the firearm offenses in February 2010, Pacely's first custody period for the firearm offenses is governed by the
January 2010 version of section 4019.
However, the parties disagree whether the 50 percent or the 100 percent
formula applies under this version. The
resolution of this question turns on whether Pacely has incurred a statutorily-defined
prior serious felony conviction so as to trigger the lower 50 percent formula
under the January 2010 version of section 4019.
The parties also disagree whether
Pacely's second custody period is
governed by the 2011 version of section 4019 (which awards 100 percent conduct
credits without the prior conviction exception), given that the second custody
period involved confinement for an offense (the December 2011 failure to
appear) that occurred after the October 1, 2011 effective date for the 2011
version.
As we shall explain, we conclude the
record does not show that Pacely incurred a statutorily-defined prior serious
felony conviction, and accordingly he is entitled to 100 percent conduct
credits under the January 2010 version of section 4019. Because the 100 percent formula can be
properly applied to both custody periods under the January 2010 version of
section 4019, Pacely's claim that the 2011 version of section 4019 applies to
the second custody period is of no practical import. Accordingly, we need not discuss the parties'
dispute over the applicability of the 2011 amendment.
Pacely's prior offenses include (1)
a 2004 juvenile adjudication for assault with a firearm, and (2) a 2008 adult
conviction for carrying a concealed firearm, with a gang participation finding
that elevated the concealed firearm offense to a felony. The parties agree, and we concur, that the
juvenile adjudication is not viewed as a conviction for purposes of
reducing conduct credits. (
343, 346.)
court, the parties disagree, however, whether Pacely's 2008 adult conviction
for the firearm offense with the felony-elevating gang finding is a serious
felony. We conclude that, on this record,
the 2008 conviction has not been shown to be a statutorily-defined serious
felony.
The serious felonies that trigger
the 50 percent formula in the January 2010 version of section 4019 are listed
in section 1192.7. In this list, section
1192.7, subdivision (c)(28) includes:
"any felony offense, which
would also constitute a felony violation of Section
186.22 . . . ."
(Italics added.) Relevant here,
section 186.22, subdivision (a), defines the substantive gang participation
offense.
The record indicates that in 2008,
when Pacely was an adult, he pled guilty to violating section 12025,
subdivision (a)(1) (i.e., carrying a firearm concealed in a vehicle), and
admitted a gang participation allegation under section 12025, subdivision
(b)(3).
guilty plea form signed by Pacely in 2008 states: "unlawfully jointly possessed a firearm
while a member of a street gang."
The probation report states that during the prior 2008 offense, Pacely
was "one of four occupants" in a car stopped for speeding; a loaded,
cocked gun was found hidden in the car near where defendant was seated;
defendant initially admitted he had the gun in his back pocket and he hid it
when the traffic stop occurred; and during the probation interview defendant
recanted and denied knowledge or ownership of the gun.
other three occupants in the vehicle with defendant during the 2008
offense. The probation report describes
Pacely as a documented gang member, and states that during his 2004 juvenile
offense of assault with a firearm, he and several accomplices made statements
identifying their gang affiliation.
The gang participation allegation in
Pacely's 2008 concealed firearm offense elevates the concealed firearm offense
from a misdemeanor to a felony when the defendant "is an active
participant in a criminal street gang, as defined in subdivision (a) of Section
186.22 . . . , as a felony." (§ 12025(b)(3).) To elevate a firearm-related misdemeanor
offense to a felony based on active gang participation, the defendant must have
engaged in conduct that satisfies the elements of the section 186.22(a) gang
participation offense. (
1115.) Further, the defendant must have
engaged in gang participation conduct that was distinct from the conduct giving rise to the charged
firearm-related offense that is being elevated to a felony due to the gang
participation allegation. (
519-520, 523-525; In re Jorge P.
(2011) 197 Cal.App.4th 628, 633-634.)
Also, to establish the substantive gang participation offense defined in
section 186.22(a), at least two gang
members must have acted in concert to commit the crime; a gang member
acting alone does not commit the gang participation offense. (People
v. Rodriguez (2012) 55 Cal.4th 1125, 1133-1138.) In short, a defendant's gang membership alone does not suffice to elevate the
firearm-related misdemeanor offense to a felony; rather, the defendant must
have, either on a separate occasion or
during the current charged firearm incident, assisted felonious activity
with another gang member in violation of section 186.22(a) by conduct apart from the misdemeanor firearm offense. (See Lamas,
supra, at pp. 524-525; Jorge P.,
supra, at pp. 633-634, 637.)
name="_ftnref10" title="">[10]
Under these principles, although the
felony-elevating gang provision set forth in section 12025(b)(3) necessarily
requires conduct that constitutes a felony violation of section 186.22(a), the
section 186.22(a) gang participation conduct need not necessarily have occurred in conjunction with the charged
firearm-related offense. For
example, a defendant can carry a concealed firearm in violation of section
12025(a)(1), and the offense can be elevated to a felony under the section
12025(b)(3) gang participation provision based on the defendant's previous gang
participation activity that was entirely
unrelated to the charged carrying of the firearm. (See, e.g., People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, 1378-1381
[firearm offense was properly elevated to felony even though gang participation
activity was not connected to the firearm offense].) In this circumstance, the
with no current gang participation activity,
cannot properly be characterized as a serious felony under section 1192.7,
subdivision (c)(28) because it is not an "offense, which would also
constitute a felony violation of Section 186.22 . . . ."
Here, Pacely's admission of the
truth of the section 12025(b)(3) felony-elevating gang participation allegation
accompanying his 2008 concealed firearm offense constitutes an admission that,
apart from carrying the concealed firearm, he also actively participated in
gang felonious activity in violation of section 186.22(a). However, there is nothing in the record
indicating he participated in the gang felonious conduct in conjunction with the 2008
firearm conduct rather than on an entirely distinct occasion. The guilty plea form for the 2008 offense
merely states that he "jointly possessed" the firearm while a gang
member, with no mention of any gang activity during the 2008 incident. The probation report describing the prior
2008 incident likewise makes no mention of gang activity during the gun possession. Defendant's gang membership alone during his possession of the gun in 2008 is
insufficient to establish that gang participation activity was occurring during
the 2008 offense. Although there were three other occupants in the car with
defendant at the time he possessed the gun who may have jointly possessed the
gun with him, the probation report does not contain any information suggesting
any of these individuals was also a
gang member so as to arguably support an inference that gang activity was occurring
at the time of the firearm possession.
At most, the probation report
depicts that defendant participated in gang activity in 2004 during his juvenile assault with a firearm offense when he
and his cohorts identified themselves as gang members. This prior gang participation activity in
2004 suffices to elevate the 2008 gun possession to a felony. However, there is nothing in the record
showing that he participated in gang activity at the time of the 2008 gun possession offense.
When determining whether a prior
conviction constitutes a serious felony, we cannot assume that the prior
offense was committed in a particular way unless the record of the prior
offense reflects this fact. (See
1083; People v. Watts (2005) 131
Cal.App.4th 589, 596-597.) The record
does not show that Pacely's 2008 conviction involved conduct that also violated
section 186.22. As stated, the fact that
his 2008 concealed firearm offense was elevated to a felony based on his gang
participation activity does not alone show that the gang participation conduct
occurred in conjunction with the firearm conduct to, in effect, transmute the
firearm offense into a gang offense for purposes of qualifying it as a serious
felony under section 1192.7, subdivision (c)(28).
The record does not establish that
Pacely incurred a statutorily-defined prior serious felony conviction; hence,
he is entitled to 100 percent conduct credits under the January 2010 version of
section 4019. Pacely should receive 374
conduct credits for his 374 actual custody days.
DISPOSITION
The
judgment is modified to award Pacely a total of 748 custody credits, consisting
of 374 actual custody credits and 374 conduct credits. As so modified, the judgment is affirmed. The
trial court shall prepare an amended abstract of judgment reflecting the
changes in the total credits and conduct credits, and forward a copy to the
California Department of Corrections and
Rehabilitation.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] Subsequent unspecified statutory references are to the Penal
Code. References to sections 12021,
12031, 12025, and 12316 (the offenses of which Pacely was convicted) are to the
former statutes; these Penal Code provisions have now been repealed and
renumbered.
name="_ftn2" title="">[2] For the count 4 ammunition possession offense, the jury was
given essentially the same instruction as for count 1 firearm possession,
except the instruction did not
include the limiting language. (See
CALCRIM No. 2591.)
