P. v. Thomas
Filed 7/12/13 P. v. Thomas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTHONY THOMAS,
Defendant
and Appellant.
E056203
(Super.Ct.No.
RIF1101096)
OPINION
APPEAL
from the Superior Court
of
County. Richard A.
Erwood, Judge. Affirmed.
Gail
Ganaja, 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, Lilia E. Garcia,
Kristine A. Gutierrez and Felicity Senoski, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury
found defendant and appellant Anthony Thomas, guilty of (1)
(former Pen. Code, § 12020, subd. (a)(4) [eff. Jan. 2009]);
for injecting or smoking a controlled substance (former Health & Saf. Code,
§ 11364, subd. (a) [eff. Jan. 2005]); and (3) willfully resisting, delaying, or
obstructing a peace officer (former Pen. Code, § 148, subd. (a)(1) [eff. Jan.
2000]). The trial court found true the
allegations that defendant suffered (1) a prior strike conviction (former Pen.
Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)); and (2) a prior
conviction for which he served a prison term (former Pen. Code, § 667.5, subd.
(b)). The trial court sentenced
defendant to prison for a term of five years.
Defendant
contends (1) substantial evidence does not support his conviction for carrying
a concealed dirk or dagger because the weapon was not capable of being readily
used; and (2) the trial court miscalculated defendant’s conduct credits (§
4019). We affirm the judgment.
A
Riverside police officer placed defendant in
handcuffs. The officer then searched
defendant. Defendant was wearing a
jacket. The officer “could feel in the
bottom of [defendant’s] jacket something stiff and rigid inside.†The officer noticed the tip of a blade
“sticking out the back of [defendant’s] jacket.†The officer found a knife “in the back lining
of [defendant’s] jacket.†The officer
described the knife as “kind of like a kitchen knife, like a steak knife, about
four-and-a-half-inch-long blade, two-and-a-half-inch-long black handle.â€
In
order to retrieve the knife from the jacket, the officer “had to actually push
the knife through [defendant’s] jacket.â€
The officer pushed the knife through the lining and pulled it out. The officer continued searching
defendant.
A. SUBSTANTIAL EVIDENCE
Defendant
contends substantial evidence does
not support his conviction for carrying a concealed dirk or dagger because the
weapon was not capable of being readily used.
We disagree.
“When
a defendant challenges the sufficiency of the evidence, ‘“[t]he court must
review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.†[Citation.]’
[Citations.]†(
856, 942-943.) “We ‘“‘presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’†[Citations.]’ [Citation.]â€
(Id. at p. 943.)
Former
section 12020, subdivision (a) made it a crime to carry a concealed dirk or
dagger. “Dirk or dagger†was defined as
“a knife or other instrument without a handguard that is capable of ready use
as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife
that is not prohibited by Section 653k, or a pocketknife is capable of ready
use as a stabbing weapon that may inflict great bodily injury or death only if
the blade of the knife is exposed and locked into position.†(§ 12020, subd. (c)(24).)
The
requirement of “ready capability[] means to exclude certain devices from†the
definition of “dirk or dagger.†For
example, “capable of ready use†excludes a weapon “that requires assembly
before it can be utilized as a weapon.â€
(People v. Sisneros (1997) 57
Cal.App.4th 1454, 1457.) Thus, “capable
of ready use†refers to the type of weapon—not the location of the weapon.
The
officer described the knife as “kind of like a kitchen knife, like a steak
knife, about four-and-a-half-inch-long blade, two-and-a-half-inch-long black
handle.†Given that the knife was “like
a kitchen knife,†it can be inferred that it had a fixed blade. The evidence supports a conclusion that the
knife could readily be used as a stabbing weapon that would cause great bodily
injury, due to the depth of the potential stab wounds, i.e., four and one-half
inches. Accordingly, we conclude
substantial evidence supports the finding that defendant’s knife was “capable
of ready use.â€
Defendant
asserts substantial evidence does not
support the “capable of ready use†finding because the knife was located in the
lining of his jacket. For the sake of
analyzing defendant’s argument, we will accept defendant’s premise that the
phrase “capable of ready use†can refer to the location of the weapon. Defendant’s argument concerning the location
of the knife is not persuasive because the tip of the knife blade was exposed,
which means defendant would only have needed to push down the fabric around the
knife blade to have the entire four and one-half inch blade exposed and ready
to use. The jury could reasonably infer
that the act of pushing out the rest of the blade would take less than a
minute, given that defendant would only need to remove the jacket and push down
the fabric around the blade. Moreover,
it did not appear from the officer’s testimony that he struggled with removing
the knife from the jacket. The officer
testified that the tip of the blade was “sticking out the back†of the jacket,
so the officer “pushed it out through the jacket and pulled it out,†and then
returned to searching defendant. The
apparent ease with which the knife was removed from the jacket is further
evidence supporting the inference that the knife was “capable of ready use.â€
Defendant
focuses on the officer’s testimony that there was no hole in the jacket other
than the one the officer made when removing the knife. Specifically, the officer was asked, “Was
there a previous hole in the lining before you created one?†The officer responded, “I did not see
one.†Defendant asserts this evidence
shows defendant did not have “quick access†to the knife. Defendant’s argument is not persuasive
because he is not looking at the evidence in the light most favorable to the
judgment. The officer also testified
that the tip of the knife blade was “sticking out the back of [defendant’s]
jacket.†The logical inference is that
there was a hole in the lining of the jacket through which the tip of the blade
was protruding, prior to the officer removing the knife. When looking at the contradictory evidence in
the light most favorable to the judgment, there is substantial evidence
supporting the jury’s verdict because the knife was readily accessible.
B. PRESENTENCE CREDITS
1. PROCEDURAL
HISTORY
Defendant
was arrested on May 19, 2011. Defendant
remained in custody and was sentenced on April 13, 2012. Defendant’s actual time in custody was 331
days. At the sentencing hearing,
defendant was granted 164 days of section 4019 credit.
2. ANALYSIS
a) Contention
Defendant
contends the trial court miscalculated his conduct credits because it should
have calculated defendant’s credits at two different rates: one formula for the days defendant spent in
jail prior to October 1, 2011, and a second formula for the days defendant
spent in jail on and after October 1, 2011.
Defendant asserts he should have been given 262 days of conduct
credit.
b) Statutory Language
In
the prior version of section 4019, “the Legislature did not expressly declare
whether the January 25, 2010, amendment was to apply retroactively or
prospectively. [Citation.] Here, [in the current version,] the
Legislature did expressly state the current version of section 4019 is to apply
prospectively only to defendants who commit their offenses on or after October
1, 2011.†(People v. Rajanayagam (2012) 211 Cal.App.4th 42, 52, fn. 4 (
interpret the most recent version of section 4019 as applying only to
defendants who committed their offenses on or after October 1, 2011. The statute does not contain a provision
granting trial courts authority to apply a bifurcated or two-tier credit
system. The current version of the
statute is only applicable to inmates who commit crimes on or after October 1,
2011. Thus, we conclude the trial court
correctly calculated defendant’s section 4019 credits per a single accrual
system, rather than a bifurcated system.
c) Statutory Ambiguity
Defendant
asserts there is ambiguity in the language of the current version of section
4019 that must be construed in his favor.
For example, defendant highlights section 4019, subdivision (h), which
reflects: “The changes to this section
. . . shall apply prospectively and shall apply to prisoners who are
confined to a county jail . . . for a crime committed on or after
October 1, 2011. Any days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by
the prior law.†Defendant asserts this
second sentence is problematic because if the current version of section 4019
only applies to people who committed crimes on or after October 1, 2011, then
it is superfluous to include language concerning credits earned prior to
October 1, 2011. Thus, defendant reasons
this seemingly conflicting language must be construed in his favor and
interpreted as creating a two-tiered or bifurcated system of credits.
When
a penal statute “is susceptible of two reasonable interpretations, the
appellate court should ordinarily adopt th[e] interpretation more favorable to
the defendant.†(People v. Avery (2002) 27 Cal.4th 49, 57.) We do not find defendant’s argument to be
persuasive because we do not find an ambiguity in the statutory language. The first sentence in subdivision (h) plainly
sets forth the rule that the current version of the statute applies only to
people to who committed crimes on or after October 1, 2011. In that context, the second sentence is not
ambiguous. The second sentence reinforces
the idea that people whose crimes were committed prior to October 1, 2011, are
subject to earning credits at the rate set forth by the prior law. The second sentence also clarifies how to
address the credit situation for people who commit crimes while in jail, e.g.
those who have earned credits, but have also committed a crime on or after
October 1, 2011. In sum, we do not find
an ambiguity in the statutory language.
d) Equal Protection
Defendant
contends equal protection requires
his conduct credits be calculated at the same rate as inmates who committed
crimes on or after October 1, 2011, because there can be no justification for
awarding inmates conduct credits at different rates based on the dates they
committed their crimes. We disagree.
Where
a statute at issue distinguishes between classes of people but “neither touches
upon fundamental interests nor is based on gender, there is no equal protection
violation if the challenged classification bears a rational relationship to a
legitimate state purpose. [Citations.]†(Rajanayagam,
conduct credits or incentives to perform assigned work and comply with rules
and regulations. (Id. at pp. 54-55.) This is
not a fundamental interest, and therefore, the issue is whether the separate
treatment of the classes bears a rational relationship to a legitimate state
interest. (Id. at pp. 53-54.)
The
separate classifications at issue in section 4019 bear a rational relationship
to the state interest in cost savings. (
In other words, section 4019 is rationally related to the objective of
reducing prison spending, which was a primary purpose of the Realignment
Act. (Id. at p. 49.) Thus, we
conclude defendant’s equal protection rights were not violated.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless indicated.
