IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ALBERT RALPH GUZMAN, DEFENDANT AND APPELLANT.
(Super. Ct. No. MF008672A) APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge.
The opinion of the court was delivered by: Levy, Acting P.J.
P. v. Guzman
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant Albert Ralph Guzman was convicted of possession of a sharp
instrument while confined in a state prison. (Pen. Code,*fn1
§ 4502, subd. (a).) While testifying in front of the
jury, appellant admitted to three prior felony convictions -- robbery,
auto theft, and possession of methamphetamine for sale -- and a gang
enhancement as to the robbery conviction. After the jury rendered its
verdict and was excused, appellant again expressly admitted the prior
robbery conviction and also admitted serving a prior prison term for a
felony. On that basis, the court found true both a prior strike
conviction within the meaning of the "three strikes" law (§§ 667,
subds. (a)-(j) & 1170.12, subds. (a)-(e)), and conviction for a felony
within five years of serving a prior prison term for a felony. (§
667.5, subd. (b).) The trial court sentenced appellant to nine years,
consisting of the four-year upper term, doubled for the strike prior,
plus a one-year enhancement for the prior prison term, to be served
consecutive to his robbery sentence for a total fixed term of 25
On appeal, appellant makes three arguments: (1) the trial court abused its discretion and committed prejudicial error when it permitted appellant to admit the prior gang enhancement charge; (2) section 4502 is unconstitutionally vague; and (3) the trial court's failure to advise appellant of his constitutional rights in connection with his admission of his priors requires remand for a new trial on the truth of his prior convictions. Respondent concedes appellant was not properly advised of his constitutional rights before admitting his priors. We affirm the conviction. We reverse the trial court's findings on the priors and remand to the trial court for proper proceedings on the truth of the prior conviction and prior prison term served, consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
On February 3, 2009, appellant was transferred to California Correctional Institution (CCI) in Tehachapi from a San Bernardino County jail. As part of inmate reception procedures, inmates must pass through a walk-through metal detector wearing only their underwear. When appellant passed through, he set off the metal detector alarms. Supervising Sergeant William Kelly asked appellant if he had any contraband. Appellant admitted he had razor blades, and was escorted to the restroom, where he removed the finger of a glove, tied off at the end, from his rectum. Inside the glove finger were a number of items, all wrapped in toilet paper and cellophane: 11 single razor blades, apparently removed from disposable shavers; one razor blade still in the plastic casing of a shaver head with the handle broken off; a piece of paper with addresses and telephone numbers written on it; and magazine clippings.
Appellant was charged with one count of possession of a sharp instrument while confined in a penal institution, with two special allegations regarding appellant's prior strike conviction and his prior prison term served.
At the pretrial hearing, with appellant present, the trial court confirmed with defense counsel that appellant was going to admit his prior strike allegation and prior prison term when he testified at trial and the jury was not going to try the priors. The trial court also ruled on the use of appellant's prior felony convictions for purposes of impeachment, permitting the prosecution to use three of appellant's prior convictions, and excluding one of his two 2005 convictions, as it was too similar to the other 2005 conviction. The court noted the allowed prior convictions were for crimes of moral turpitude and would impact appellant's credibility. The court also noted the convictions were recent or close in time to releases from prison. Finally, the court noted the current charge was dissimilar to the priors and appellant's decision to testify would suffer no impact from allowing the prosecution to present evidence of his prior convictions. No mention was made of a gang enhancement to one of the prior convictions at that time.
At trial, Officer Richard Hetzel and Lieutenant Jeffory Gentry testified that certain prisoners were allowed to possess disposable shavers, depending on their classification level within the prison. Appellant, however, being slated for "Administrative Segregation," was not allowed to have any razors in his possession. The correctional officers also testified as to the potential use of exposed razors as weapons or slashing instruments. No inmate is permitted to possess razor blades removed from the disposable shaver casing. All inmates are issued the same type of shaver throughout the prison.
Upon taking the stand, the court advised appellant of his right to remain silent, but appellant chose to continue with his testimony. He then admitted he was currently incarcerated for robbery, and had prior convictions for auto theft and methamphetamine possession for sale.
Appellant also testified he had previously been incarcerated at CCI and believed the razor blade quality there to be inferior to the razors he received in San Bernardino. He intended to bring the razors solely for shaving. He had brought multiple razors because he did not want to wait for his family to put money into his account so he could buy razors from the canteen.
On cross-examination, the prosecution brought up appellant's robbery conviction again, asking, "isn't it right that that robbery conviction was committed for the benefit of a criminal street gang?" Defense counsel objected on relevance grounds, which the court initially sustained, but after an unreported discussion, the court allowed the prosecution to move forward with the question. Appellant then admitted he was convicted of robbery for the benefit of a criminal street gang. Later, the court put on the record the unreported discussion. Defense counsel argued admission of the enhancement was more prejudicial than probative since there was no gang enhancement for the offense at bar. The prosecution argued the gang enhancement was a separate charge, which had been found to be true. The court allowed the admission and noted the gang enhancement was also a crime of moral turpitude and relied on the same reasoning as it had in allowing the prior convictions.
The jury instructions stated the jury could consider "evidence that the object could be used in a harmless way in deciding if the object is a sharp instrument." (CALCRIM No. 2745.) While deliberating, the jury asked the court for a legal definition of "sharp instrument." The court explained there was no legal definition of the phrase and directed the jurors to the jury instruction, which stated in pertinent part, "[w]ords and phrases not specifically defined in the instructions are to be applied using their ordinary, everyday meanings." The jury then noted a discrepancy in the wording between the verdict form and the jury instructions on the elements of the crime. The verdict form used the word "weapon" whereas there was no mention of "weapon" in the instructions, only "sharp instrument." The trial court modified the verdict form to conform to the instructions, removing mention of the word "weapon." The jury then found appellant guilty of possessing a sharp instrument while in a penal institution. After the jury was excused, appellant expressly admitted his prior strike conviction and his prior prison term alleged in the information.
I. Appellant was not prejudiced by impeachment with gang enhancement admission.
Appellant contends his admission of the gang enhancement in connection with his prior robbery conviction was prejudicial and deprived him of a fair trial because the reference probably inflamed the jury so much that it affected his credibility. We disagree.
"A trial court's admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]" (People v. Avitia (2005) 127 Cal.App.4th 185, 193 (Avitia); People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Any felony conviction which necessarily involves moral turpitude may be used for purposes of impeachment, even if the immoral trait is not dishonesty. (Cal. Const., art. I, § 28, subd. (f); People v. Castro (1985) 38 Cal.3d 301, 306 (Castro).) Criminal courts have broad discretion to admit or exclude acts of dishonesty or moral turpitude "relevant" to impeachment. (Cal. Const., art. I, § 28, subd. (d); People v. Wheeler (1992) 4 Cal.4th 284, 288 (Wheeler).) The California Supreme Court has equated "moral turpitude" with a "readiness to do evil" and the essential evaluation is of the witness's willingness to lie. (Castro, supra, 38 Cal.3d at p. 314; see also Wheeler, supra, 4 Cal.4th at pp. 295-296.)
We need not determine here whether the gang enhancement itself was a separate instance of moral turpitude. The gang enhancement was attached to a robbery conviction, which is a crime of moral turpitude. (People v. Collins (1986) 42 Cal.3d 378, 395.) We recognize the potentially prejudicial effect of gang membership evidence, especially in a case devoid of gang evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 223; see also Avitia, supra, 127 Cal.App.4th at p. 192; People v. Maestas (1993) 20 Cal.App.4th 1482, 1497-1498.) However, even assuming the prosecution's passing references to appellant's gang enhancement constituted error, it was harmless.
We evaluate error under the Watson standard of a reasonable
probability of a more favorable verdict. (People v. Watson (1956) 46
Cal.2d 818, 836.) Here, several factors indicate that any potential
prejudicial effect was not realized. First, the gang enhancement
component of the impeachable prior felony robbery conviction was
mentioned only in passing. The prosecution referenced the gang
enhancement once during trial, and then briefly once again in closing
argument. The prosecution made no effort to pursue or mention further
details as to the gang enhancement charge and no connection was made
between appellant and a specific gang or other gang activities.*fn2
One prosecution witness was the institutional gang
officer at CCI, but his testimony made no connection between appellant
and a specific gang or activity.
Second, the jury knew that appellant had three prior felony convictions. He admitted them within moments of taking the witness stand. He admitted he was currently serving time for a robbery. He admitted having had prior experience with CCI, its rules, regulations and procedures. Before the prosecution mentioned the gang enhancement, the jury was aware of appellant's criminal history. It is unlikely admission of the gang enhancement uniquely evoked any emotional bias given appellant's admitted prior criminal history. (See People v. Doolin (2009) 45 Cal.4th 390, 439.)
Third, any "animus" arising in jury members from the prosecution's reference to the gang enhancement charge could have been mitigated by appellant when he testified during redirect, but defense counsel avoided the issue.
Finally, there was overwhelming evidence of appellant's guilt. Appellant admitted he possessed the razor blades, admitted he brought the razor blades, and knew that the razor blades were a sharp instrument -- he testified the quality of the San Bernardino shavers was "very good" and he preferred to have a "sharp razor blade" for shaving his face and his head. His defense was that he brought the razor blades solely for the harmless purpose of shaving.
Appellant contends the jury could have reasonably concluded the razors objectively had a harmless purpose and therefore were not a "sharp instrument" for purposes of applying the statute. However, because the prosecutor implied that appellant was a gang member, the jury assumed appellant was motivated by a criminal propensity, rather than by a harmless purpose, and therefore found the razors to be "sharp instruments" under the statute. Appellant argues the jury in fact struggled with this concept, as demonstrated by its request for clarification of the definition of "sharp instrument."
To prove a violation of section 4502, the prosecution needed only to prove that appellant (1) was present at or confined in a penal institution; (2) possessed a sharp instrument; (3) knew that he possessed a sharp instrument; and (4) knew that the object was a sharp instrument. (CALCRIM No. 2745.) Appellant would have us believe the gang enhancement was the sole evidence swaying the jury to reach its conclusion. For the reasons we noted above, we are not persuaded. It does not appear reasonably probable that the jury was unduly influenced by appellant's admission of the gang enhancement charge, or that the admission affected the verdict, so that a result more favorable to appellant would have been reached in the absence of the evidence of the gang enhancement. We find no miscarriage of justice here. (People v. Watson, supra, 46 Cal.2d at p. 836.)
II. Section 4502 Is Not Unconstitutionally Vague.
Appellant next contends section 4502, subdivision (a), is unconstitutionally vague, thus violating his due process rights. He argues the phrase "sharp instrument" is unclear, and there is a discrepancy between what the statute facially punishes and what courts have interpreted to be permitted despite the statute's mandate. Appellant specifically contends that "an inmate has no way of knowing whether possession [of] an item not expressly permitted, but capable of a harmless use, is a violation of the statute" until tried by a jury.
Section 4502, subdivision (a), provides in pertinent part:
"Every person who, while at or confined in any penal institution, while being conveyed to or from any penal institution, or while under the custody of officials, officers, or employees of any penal institution, possesses or carries upon his or her person or has under his or her custody or control any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, or metal knuckles, any explosive substance, or fixed ammunition, any dirk or dagger or sharp instrument, any pistol, revolver, or other firearm, or any tear gas or tear gas weapon, is guilty of a felony ...." (Italics added.)
"'[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' [Citations.]" (People v. Rodriquez (1975) 50 Cal.App.3d 389, 398 (Rodriquez).) Thus, criminal statutes must be reasonably definite, both in providing a standard of conduct for persons subject to the statute, and in providing guidelines for law enforcement agencies and personnel. (People v. Custodio (1999) 73 Cal.App.4th 807, 811 (Custodio).) "The requisite certainty may be supplied by reference to either long established usage [citations], or legislative purpose [citation]." (Rodriquez, supra, 50 Cal.App.3d at p. 398.) "Use of a generic term does not, ipso facto, make a statute vague. [Citation.]" (Id. at p. 399.) With regard to section 4502, subdivision (a) specifically, "[t]he Legislature was not required to list every type of sharp instrument in the statutory prohibition. All that is required is that the crime must be clearly defined so that any reasonable person will know what constitutes a violation." (People v. Harris (1950) 98 Cal.App.2d 662, 666 (Harris).)
Section 4502 has a long history. "Facial attacks on section 4502 based upon claims that it is unconstitutionally vague have been rejected over the past 50 years. [Citations.]" (Custodio, supra, 73 Cal.App.4th at p. 811; see also Harris, supra, 98 Cal.App.2d at p. 666 [upholding section 4502 constitutionality where defendant contended the statute "does not define what constitutes a 'sharp instrument' and is therefore indefinite, uncertain and ambiguous"]; People v. Steely (1968) 266 Cal.App.2d 591, 596 (Steely) [upholding constitutionality where defendant claimed the statute was "uncertain with respect to the conduct that it prohibits, i.e., whether it includes conduct the purpose of which is 'commendable'"].) We follow such long-established precedent here.
From a legislative perspective, section 4502 was
"enacted to protect inmates and officers of state prisons from the peril of assaults with dangerous weapons perpetrated by armed prisoners. That statute was adopted on the justifiable theory that there is greater danger of imprisoned felons becoming incorrigible and resorting to violence if they are permitted to carry upon their persons deadly weapons. The possession of such weapons by prisoners is therefore validly and wisely prohibited." (Wells, supra, 68 Cal.App.2d at p. 481.)
Razor blades have been found to be deadly weapons for purposes of section 4574,*fn3 a statute analogous to section 4502, which prohibits persons from bringing deadly weapons into a state prison. (See People v. Savedra (1993) 15 Cal.App.4th 738, 745.) The correctional officers testified as to their use as weapons in CCI. Razor blades thus fall squarely within the construct of the legislative intent behind the statute.
Vagueness arises, appellant argues, from a discrepancy between the strict liability nature of the statute, "punish[ing] knowing possession of anything sharp," and the possibility the statute would not apply to an item inmates were permitted to possess. (See Custodio, supra, 73 Cal.App.4th at p. 812.)*fn4 We disagree. The Custodio court analyzed section 4502 in the context of whether or not the law gave a person of "'"'ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly....'"' [Citation.]" (Custodio, supra, 73 Cal.App.4th at p. 811.) The court concluded a person of ordinary intelligence would know what is and what is not prohibited by the statute, and would know, for example, that a pencil, which has a "legitimate and necessary purpose," would not fall under the statute unless used as a weapon. (Id. at p. 812.)
We agree with appellant's underlying premise that an inmate possessing a disposable shaver in the form and manner permitted by CCI regulations would not necessarily be subject to section 4502. However, a person of ordinary or common intelligence would know that 12 razor blades transported in a body cavity to a state prison would be a violation of section 4502. The purpose of a razor blade is to be sharp, to cut hair. Appellant had prior experience with CCI policies and procedures, even of the unit to which he was specifically being transferred. Appellant knew he was violating the provision, as demonstrated by the fact he hid the razor blades in a body cavity in an attempt to get them past security screening procedures.
Appellant claims a second discrepancy -- that jurors are instructed they may consider an object's harmless purpose to determine whether an object is a "sharp instrument" for purposes of the statute. The jury, however, need not determine whether a defendant had a specific intent to use the item as a weapon or merely for harmless purposes. (Steely, supra, 266 Cal.App.2d at p. 594 ["Proof of knowing possession of such an instrument by a state prison inmate is sufficient for conviction. The prosecution is not required to prove the intent or purpose for which the instrument is so possessed. [Citations.]"].) The jury need only make a determination that a defendant knowingly possessed a sharp instrument while confined in a penal institution, which the jury did here after careful deliberation. While they may have seemed to question the term "sharp instrument," they still reached a verdict relatively quickly -- within an afternoon. "A difficult standard does not make a statute unconstitutionally vague. [Citation.] '[S]tatutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.' [Citations.]" (Rodriquez, supra, 50 Cal.App.3d at p. 399, fn. omitted.) We do not find the statute to be unconstitutionally vague.
III. The Boykin-Tahl advisement was inadequate.
A defendant's admission of a prior conviction or prior serving of a prison term must be "intelligent and voluntary in light of the totality of circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361 (Mosby).) Though a trial court remains required to give Yurko advisements,*fn5 error in failing to do so is no longer viewed as reversible per se. (Mosby, supra, 33 Cal.4th at p. 361.) Thus, where a defendant was not expressly advised of, nor waived, his rights, "the reviewing court must examine the record of 'the entire proceeding.'" (Id. at p. 361.) The court may also take into consideration a defendant's understanding, including that gained from a defendant's "'prior experience with the criminal justice system'" which is "'relevant to the question [of] whether he knowingly waived constitutional rights.'" (Id. at p. 365.) However, when a defendant admits a prior, but has not first been advised of his or her right to a trial to determine the truth of the prior conviction allegation, "we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at p. 362.)
Here, there was no express advisement of a waiver of jury trial. At the pretrial hearing on the motions in limine, the trial court confirmed with defense counsel, with appellant present, that appellant intended to admit to his priors when he testified at trial. The trial court touched on the fact that the jury would not be trying the prior convictions in that discussion but did not expressly address appellant or his attorney to ensure it was a voluntary and intelligent waiver of his jury trial right for the prior convictions. At trial, before appellant testified, the trial court advised appellant of his right to remain silent and that he would be subject to cross-examination by the prosecution, but did not specifically advise appellant of his rights in relation to admission of his priors. Although appellant had just sat through a trial where he watched witnesses being examined, and also had prior criminal justice system experience, the record makes no indication as to the extent of his experience with waivers of his Boykin-Tahl rights or that he otherwise voluntarily and intelligently waived those rights.
Respondent concedes the issue. Thus, we will remand the matter to the trial court for further proceedings consistent with this opinion.
The judgment convicting appellant of violating Penal Code section 4502, subdivision (a) is affirmed. The true findings on the special allegations that appellant has suffered a prior conviction within the meaning of Penal Code sections 667, subdivisions (c) through (j) and 1170.12, subdivisions (a) through (e), and that appellant has served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b), are reversed. The sentence is vacated. The matter is remanded to the trial court with directions to resentence appellant after conducting either a limited new trial to determine the truth of the special allegations or, if appellant elects to admit one or both of the special allegations, a hearing to accept appellant's admission(s).