Filed 9/27/18 P. v. Palmero CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Peter Palmero of possession of a sharp instrument by an inmate (Pen. Code, § 4502, subd. (a)/count 1).[1] In a separate proceeding, the court found true a prior prison term enhancement (§ 667.5, subd. (b)) and allegations that Palmero had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).

On appeal, Palmero contends: (1) the evidence is insufficient to sustain his possession of a sharp instrument conviction; and (2) the court erred when it stayed his prior prison term enhancement. We find merit to Palmero’s second contention and strike the enhancement. In all other respects, we affirm.

FACTS

The Prosecution Case

The prosecution evidence established that on December 7, 2015, Palmero was an inmate at North Kern State Prison. At approximately 9:35 a.m., that day, Correctional Sergeant Joshua Farley responded to a code 2 alarm, i.e., a request for additional staff at the Delta facility basketball courts. When he arrived, approximately 40 officers and other correctional staff were already there and had formed a “skirmish” line along the courts. Initially, all the inmates were lying on their stomachs, with the majority of them on the basketball courts. However, shortly after Farley arrived, approximately 20 to 25 inmates rushed the skirmish line and a code 3 alarm was called, which resulted in 35 to 40 more correctional officers and staff responding to the location.

Farley sprayed pepper spray on several of the inmates who rushed his section of the line, but after getting spray in his own eyes, he took cover behind another officer. The effect of the spray lasted approximately two and a half to three minutes. When Farley recovered his vision, the inmates were again lying prone on the ground and the correctional officers and staff began putting flex cuffs on them.

Once all the inmates in the yard were handcuffed, Farley had a chance to interact with Palmero, who was lying prone on a basketball court with eight to 10 other inmates near him. Next to Palmero was a shoe (the first shoe) that Palmero had been wearing and had been placed next to him after it was searched and checked for weapons. On the basketball court, 10 feet away from Palmero, lay a second shoe. One shoe was for the right foot and the other for the left foot. The shoes were the same size, the same state-issued style and brand (out of various brands that were available); and both shoes had similar tread wear on their innersoles. A piece of steel that had been sharpened to a point and was covered with a sheath was found tucked under the insole of the second shoe. Farley testified that the piece of steel was an inmate-manufactured stabbing weapon. He did not see any other inmates with only one shoe that day. Several weapons were found in the exercise yard, including one in the shoe of another inmate.

The Defense Case

Derek Sommer was also an inmate at the prison on December 7, 2015. Sommer testified that during the disturbance he was on a grassy area next to the basketball courts. Sommer was carrying a piece of metal, that was shaved down to function as a knife, in a pocket he had sewn into his pants. When some inmates got up and rushed the correctional staff’s skirmish line, Sommer got up, looked for a place to get rid of the manufactured weapon, and shoved it into a shoe he saw on the grass not too far from him. He then backed away as far as possible because the officers started firing rubber bullets. Sommer was serving a sentence of 140 years and was impeached with 16 felony convictions.

Palmero testified he did not possess a weapon on December 7, 2015. According to Palmero, he lost a shoe when he got up with the other inmates and charged the skirmish line. He did not pay attention to the shoe and left it behind. On cross-examination, Palmero testified he was “pretty sure” the second shoe was his and he denied telling Farley it was not. Palmero was impeached with three felony convictions.

Rebuttal

Correctional Sergeant Shaine Jensen testified that of the approximately 30 inmates that got up and rushed the skirmish line, none of them wore only one shoe during the 10- to 15-seconds before they got back down on the ground.

Officer Farley testified that Sommer was lying next to a blue jacket when the inmates first lay prone on the ground. An inmate-manufactured stabbing type weapon, wrapped in latex and housed in a sheath, was on top of the jacket. While Farley was discussing the weapon with other officers, Sommer looked at Farley and stated that the weapon belonged to him and that he did not want anyone else to get in trouble for the weapon he brought out to the yard. He also provided an accurate description of the weapon and the sheath. Farley further testified, that when he approached Palmero as he lay on the basketball court, prior to removing or exposing the weapon found in the second shoe, Farley jokingly stated, “Well, we know who this shoe belongs to.” Palmero replied that it was not his shoe.

DISCUSSION

The Sufficiency of the Evidence

Palmero contends the evidence is insufficient to sustain his conviction for possession of a sharp instrument by an inmate because he denied ownership of the second shoe and the evidence failed to establish that the second shoe belonged to him or that he ever possessed it while knowing that it contained a weapon inside. We disagree.

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] ... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence.’ ” (People v. Covarrubias (2016) 1 Cal.4th 838, 890.)

“In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Section 4502, subdivision (a), provides: “Every person who, while … confined in any penal institution, … possesses or carries upon his or her person or has under his or her custody or control any … sharp instrument, … is guilty of a felony[.]”

“To show a violation of this statute, the prosecution must prove the defendant was confined in a state prison and that he had knowledge of the prohibited object in his possession.” (People v. Strunk (1995) 31 Cal.App.4th 265, 272.)

The evidence established that after the inmates were handcuffed on the exercise yard, a piece of steel with a sharp point was found hidden under the insole of the second shoe. Palmero testified that when he got up to rush the skirmish line he lost a shoe. He also admitted that he was fairly certain the second shoe belonged to him. Additionally, the first shoe and the second shoe were a matching pair and they had the same wear pattern on their inner soles. Further, the jury could have found from the testimony of Farley and Jensen that Palmero was the only inmate who was missing a shoe after the inmates were handcuffed. It could also reasonably infer from these circumstances that the second shoe belonged to Palermo and that Palmero possessed the weapon concealed in the shoe before the second shoe came off his foot sometime during the incident in the yard.

Moreover, before he was informed that the second shoe contained a weapon, Palmero denied to Farley that the shoe belonged to him. The jury could reasonably have found from the above evidence that Palmero falsely told Farley the second shoe did not belong to him because he knew the shoe contained a weapon inside. (People v. Edwards (1992) 8 Cal.App.4th 1092, 1102 [“It is well established that pretrial false statements by a defendant may be admitted to support an inference of consciousness of guilt by the defendant.”].)

Although Palmero tried to show that Sommer could have placed the weapon in his shoe, the jury could have found from Farley’s testimony that Sommer placed the weapon he brought out to the yard on the jacket found next to him. Thus, we conclude that substantial evidence supports Palmero’s conviction for being an inmate in possession of a sharp instrument.

The Prior Prison Term Enhancement

On June 28, 2017, the trial court stayed the prior prison term enhancement and sentenced Palmero to the doubled upper term of eight years. Palmero and respondent agree that the court imposed an unauthorized sentence when it stayed this enhancement.

“Once [a] prior prison term is found true within the meaning of section 667.5 [subdivision] (b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken.” (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Thus, we agree with the parties that the court imposed an unauthorized sentence when it stayed appellant’s prior prison term enhancement instead of striking it.

Respondent contends that the matter should be remanded to the trial court so it can exercise its discretion to strike or impose the enhancement. However, in sentencing Palmero the court noted that it had received a letter from him and that it took the letter into account, “particularly, in terms of striking [the] prison prior.” It can be inferred from this comment that the court intended to strike the prior prison term enhancement but erroneously stayed it instead or, alternatively, that if the matter were remanded the court would strike the enhancement, rather than imposing it. Under these circumstances, remanding the matter to the trial court would be a futile act and instead we will strike the enhancement. (Cf. People v. Seldomridge (1984) 154 Cal.App.3d, 362, 365.)

DISPOSITION

The prior prison term enhancement is stricken. The trial court is directed to issue an amended abstract of judgment that omits this enhancement and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.