Filed 1/10/18 P. v. Ray CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY ALAN RAY,

Defendant and Appellant.

F073129

(Super. Ct. No. F14909515)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.
Jonathan D. Roberts, 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, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

A jury convicted appellant Timothy Alan Ray of making criminal threats (Pen. Code, § 422/count 1) and carrying a concealed dirk or dagger on his person (§ 21310/count 2), and found true a personal use of a weapon enhancement in count 1. In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)(1)) and allegations that Ray had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).
On January 26, 2016, the court sentenced Ray to an aggregate 10-year prison term consisting of a doubled, middle term of four years on his criminal threats conviction, a one-year arming enhancement in that count, a five-year serious felony enhancement, and a concurrent, doubled term of four years on his carrying a concealed dirk or dagger conviction.
On appeal, Ray contends: (1) the evidence is insufficient to sustain his conviction for possession of a concealed dirk or dagger; (2) the court committed instructional error; and (3) he was denied the effective assistance of counsel. We affirm.
FACTS
Charlie Roberts testified that he had worked as a high school security officer for 22 years for the Fresno Unified School District and in that capacity, he had been trained to be observant.
On October 4, 2014, at approximately 1:00 a.m., Roberts was on a sidewalk by a Starbucks store, leaning on his car and talking to three people, when he saw Ray walking in their direction. Ray looked at him in a strange way so Roberts glanced over at him. Ray was approximately 13 feet away from Roberts when Ray stated, “Hey you f**ing n**ger, are you looking at me?” Roberts replied, “Are you talking to me?” At that point, Ray did not have anything in his hands.
As Ray got closer, he reached into the long jacket he wore and pulled out a “good sized” sword. It came from “within his jacket.” Roberts backed away toward the street side of his car keeping his sight on Ray. Ray walked by Roberts on the other side of Roberts’s car five to seven feet from Roberts and stated, “I will cut your black ass.” This caused Roberts to step back further and other people to alert police officers who were working at Bobby Salazar’s.
Roberts and his group kept Ray in their sight as Ray walked around the corner from Starbucks. They followed him to the rear of the store and saw Ray enter a “porta potty.” When police officers arrived, they pointed Ray out and the officers took over the situation. When Ray initially pulled out the sword, Roberts did not see any other weapons on him.
Fresno Police Officer Mark Witrado testified that he was flagged down regarding a weapons disturbance involving a person armed with a knife. Witrado saw Ray holding a “KA-BAR” knife and a sword in his hands. He ran toward Ray, and ordered him to get on the ground. Ray eventually laid down on the ground and was taken into custody.
According to Witrado, Ray was wearing a long black shirt and camouflaged pants. He also had a sheath for the knife attached to one of his thighs over his pants and a sheath for the sword tucked in the front of his waistband, on the inside. Ray smelled of alcohol and appeared to be intoxicated.
DISCUSSION
The Sufficiency of the Evidence
Ray’s conviction for possession of a concealed dirk or dagger was based on his concealed possession of the knife. Ray contends the evidence is insufficient to sustain his possession of a concealed dirk or dagger conviction because there was no testimony that established that the long shirt or jacket he wore covered or concealed the knife in any way while it was in the sheath attached to his thigh. 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.] When reviewing the sufficiency of evidence to support a special circumstance, the relevant inquiry is ‘ “whether, after viewing the evidence in the light most favorable to the People, any rational trier of fact could have found the essential elements of the allegation 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. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
In order to prove Ray unlawfully possessed a dirk or dagger, the prosecutor had to prove that he carried a dirk or dagger, he knew he was carrying it, it was substantially concealed on his person, and that Ray knew it could readily be used as a stabbing instrument. (CALCRIM No. 2501.) The only element at issue here was whether the knife, when carried in the sheath, was substantially concealed when Ray confronted Roberts.
Roberts testified Ray only drew his sword when he threatened to cut Roberts. During their encounter, he did not see Ray with any other weapons. But immediately thereafter, Witrado saw Ray holding a knife and a sword in his hands. He also saw that Ray had a sheath for the knife attached to one of his thighs over his pants. Therefore, the evidence established that Ray possessed both a knife and a sword when he encountered Roberts. Further, the jury could reasonably infer from the above circumstances that when he threatened Roberts, Ray had the knife in the sheath that he wore on his thigh.
In the course of his employment, Roberts was trained to be observant and even though Ray came within five to seven feet of him, Roberts did not see the knife or the sheath during his encounter with Ray. The jury could reasonably conclude from these circumstances that if the sheath containing the knife had been visible, Roberts would have seen it. Further, since the sheath for the sword was inside Ray’s waistband and came from “within the jacket”, the jury could reasonably infer that Ray had been carrying the sword illegally concealed. It could also reasonably be inferred that if Ray was inclined to carry a sword illegally concealed under his shirt or jacket, he likely also carried the knife concealed on his person. Thus, even though the record does not disclose how long Ray’s shirt or jacket was, the jury could reasonably conclude it was long enough to conceal the knife while it was in the sheath attached to his thigh. Accordingly, we conclude the evidence was sufficient to sustain Ray’s conviction for carrying a concealed dirk or dagger.
The Alleged Instructional Error
Although the court instructed the jury in the language of CALCRIM No. 2501, it did not instruct them with an optional, bracketed portion of the instruction that is based on section 20200 and states: “A knife carried in a sheath that is worn openly suspended from the waist of the wearer is not concealed.” Ray contends the court erred in failing to instruct the jury with this omitted portion of CALCRIM No. 2501 because this failure allowed the jury to conclude that the knife was concealed while it was in its sheath, even if the sheath was completely visible without clothing covering it from view. He further contends the error was not harmless beyond a reasonable doubt. We reject these contentions.
“ ‘ “In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.” [Citation.] That duty extends to “ ‘instructions on the defendant’s theory of the case, including instructions “as to defenses ‘ “that the defendant is relying on ..., or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” ’ ” ’ ” [Citation.] But “ ‘when a defendant presents evidence to attempt to negate or rebut the prosecution’s proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties.’ ” ” (People v. Lawson (2013) 215 Cal.App.4th 108, 117.)
Witrado testified Ray had the knife and sword in his hands when he confronted Ray. Thus, the only time the knife would have been in the sheath was during Ray’s encounter with Roberts. However, neither party argued or suggested that during this encounter the knife was concealed within the meaning of section 21310 because it was carried openly in a sheath. Instead, in his initial closing argument, the prosecutor argued that Witrado’s testimony established that Ray carried both a knife and a sword (that the prosecutor referred to collectively as knives) and that he had a sheath for the knife strapped to one of his thighs. He further argued that since Roberts did not see the knife during his encounter with Ray, the knife must have been in the sheath and they both were concealed by the long shirt or jacket Ray was wearing. In his rebuttal argument, the prosecutor again argued that during the encounter with Roberts, Ray’s knife was in the sheath and both were concealed by the long shirt or jacket Ray was wearing.
In his closing argument, defense counsel argued, in pertinent part, that the
evidence failed to show Ray had the knife concealed during his encounter with Roberts because: (1) the knife was in a sheath that Witrado testified Ray wore “outside, on top … of his clothing”; (2) Robert’s failure to see the knife or sheath did not mean Ray had the knife concealed because, among other things, Roberts was concentrating on Ray’s hands and face and there was no evidence regarding the lighting at the time; and (3) the prosecutor had the burden to establish the knife was concealed and he failed to ask crucial questions of Roberts such as how much and what parts of the knife (and sheath) he saw. Thus, defense counsel’s closing argument also did not indicate or imply that the knife was concealed within the meaning of section 21310 simply by virtue of being carried in the sheath.
It is clear from the evidence and counsels’ closing arguments that the omitted portion of CALCRIM No. 2501 would have addressed one element of the charged offense and did not relate to an issue raised by the evidence, defense counsel’s theory of the case, or to a defense. Thus, we conclude that the court did not err by its failure to charge the jury sua sponte with the omitted portion of CALCRIM No. 2501.
The Ineffective Assistance of Counsel Claim
Ray contends that if the court did not have a sua sponte duty to instruct the jury with the omitted portion of CALCRIM No. 2501, defense counsel was ineffective by his failure to request the court to charge the jury with this portion of the instruction. He also contends defense counsel was ineffective by his failure to object to the prosecutor’s misstatement of the law and evidence when the prosecutor stated during closing argument that the knife was concealed because “the sheath for the … knife was around the thigh with the sheath covering it.”
To prevail on a claim of ineffective assistance of counsel, a defendant “must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.)
As discussed above, based on the evidence and counsels’ closing arguments, the only issue in the case was whether during Ray’s encounter with Roberts, the long shirt or jacket Ray was wearing substantially covered the knife and the sheath it was in, which was strapped to Ray’s thigh. There was also no logical reason for the jury to conclude the knife was substantially concealed simply by virtue of being carried in the sheath. Thus, there was no reason for defense counsel to request the court to charge the jury with the omitted part of CALCRIM No. 2501 and he did not provide ineffective representation by his failure to do so.
Nor did defense counsel provide deficient representation by his failure to object to the prosecutor’s statement that “the sheath for the … knife was around the thigh with the sheath covering it.” This statement did not purport to state a legal principle and, thus, was not a misstatement of the law as Ray contends. The statement also did not misstate the evidence. The prosecutor made the statement at issue during the following exchange that occurred during his closing argument:
“[PROSECUTOR]: We heard testimony from that very same officer that the sheath for the [KA-BAR] knife was around [Ray’s] ankle with a shirt covering over it. So that is why Mr. Roberts —
“[DEFENSE COUNSEL]: Objection, misstates the testimony.
“THE COURT: Counsel said ankle —
“[PROSECUTOR]: I did say ankle, [y]our Honor?
“THE COURT: You did.
“[PROSECUTOR]: I meant thigh. Thank you for the correction, [y]our Honor.
“So the sheath for the [KA-BAR] knife was around the thigh with the sheath covering over it.” (Italics added.)
It is apparent from the second use of the word “sheath” in the last statement that the prosecutor misspoke and intended to say “shirt.” Given the physical impossibility of the statement, i.e., that the sheath covered itself, and the statement’s context, if the prosecutor misspoke, the jury should have understood the statement to mean the prosecutor was arguing that Ray’s shirt was covering the sheath with the knife in it. Further, it is clear from the context of the last statement in the quote that the statement was argument and not evidence and that the jury would have understood this because the court instructed them pursuant to CALCRIM No. 222 that “[n]othing that the attorneys say is evidence.” In any case, even if objectionable, defense counsel may have had a tactical reason for not objecting to this statement because the statement was brief and objecting to it would have allowed the prosecutor to make his argument in a clearer, more cogent manner.
Therefore, since Ray has not shown that he was denied the effective assistance of counsel by defense counsel’s failure to object to the statement at issue, we also reject his ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.