APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Affirmed with directions. (Los Angeles County Super. Ct. No. BA337647)
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Defendant Dewone T. Smith appeals from the judgment entered following a jury trial in which he was convicted of custodial possession of a weapon (Pen. Code, § 4502, subd. (a); undesignated statutory references are to the Penal Code), two counts of resisting an executive officer (§ 69), and three counts of battery by gassing (§ 243.9, subd. (a)), crimes committed in the county jail. Defendant had previously been treated for mental illness while incarcerated in state prison and, upon parole, treated by the State Department of Mental Health as a "prisoner [having] a severe mental disorder."
Defendant contends the trial court erred by refusing to instruct on misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) as a lesser included offense and that it abused its discretion by denying his motion to vacate three or more "strike" findings under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm defendant's conviction but vacate his 150-years-to-life sentence and remand for the trial court to reconsider defendant's Romero motion and its exercise of sentencing discretion because the trial court abused its discretion by failing to consider several very significant factors: defendant's mental illness, the impropriety of defendant's incarceration in the county jail at the time of the commitment offenses, the combined effect of defendant's improper incarceration in county jail and mental illness, and the relatively minor nature of the commitment offenses. In addition, the court's comments indicate it may have been unaware of the variety of ways in which it could exercise its discretion to impose something less than the sentence it admittedly found "excessive."
Defendant had several prior convictions, including an April 2000 conviction for involuntary manslaughter. Defendant was paroled on that case in February 2003, but his parole was revoked after he was convicted in September 2004 of driving under the influence in violation of Vehicle Code section 23152, subdivision (b). While he was back in prison, six new charges were filed against defendant and ultimately consolidated under Los Angeles County Superior Court case No. MA032128: five counts of battery by gassing on a correctional officer (§ 4501.1, subd. (a)) and one count of making a criminal threat (§ 422). Defendant was "paroled" to the custody of the Los Angeles County Sheriff's Department on October 27, 2006, apparently for trial of these charges. On April 30, 2007, defendant pleaded no contest to two violations of section 4501.1, subdivision (a) and the criminal threat charge. On May 25, 2007, the court granted defendant probation, but on June 20, 2007, the court resentenced him to four years eight months in prison and awarded him 864 days of presentence credit. The court's minute order stated, "The defendant is ordered to be transported to state prison forthwith." Yet for causes not explained in the record before us, the Los Angeles County Sheriff never transported defendant to a state prison to serve the remainder of his sentence in case MA032128, but instead left him in the county jail, where he engaged in misconduct giving rise to the convictions in the present case.
The first incident involved in the present case occurred on February 7, 2008, following several days of insults exchanged between defendant and a Hispanic inmate in the same "security level nine" module. (Undesignated date references are to 2008.) Sergeant Mark Renfrow, who was in charge of discipline in the men's central jail, believed there would be a race riot when the inmates in the module were let out for their weekly "roof time" recreation on February 7, so he brought in extra deputies to respond. When the cell doors were opened, two inmates charged toward defendant, who raised one hand above his head. Renfrow saw that defendant was holding a shank. Deputies fired rubber-pellet shotguns and all inmates dropped to the floor. Renfrow recovered defendant's shank, which was made of a short pencil tied to two spoons. Defendant explained that he had the shank for protection because "when you go up against more than two, you need a little help." Defendant was placed in disciplinary housing for 30 days, which Renfrow felt was an appropriate discipline. Generally, possession of a weapon in jail resulted in 15 to 30 days in disciplinary housing. Although Renfrow testified that "more often than not" a jail inmate's violation of rules--even fighting with a deputy--results in only internal administrative discipline, not criminal charges, the district attorney charged defendant with custodial possession of a weapon based upon this incident.
The next incident occurred on April 21 when defendant and six to eight other inmates were being moved out of a cellblock that housed potential "K10" high security inmates and into the general population. The inmates were supposed to face a wall while a single deputy searched every inmate's plastic bag of personal property for contraband. Several other deputies watched the inmates. Defendant repeatedly looked back toward the deputies and asked them not to lose his paperwork and important legal documents. Deputy Deloy Baker told defendant three times to face the wall and be quiet. When defendant again looked back, Baker moved toward defendant, placed one hand on defendant's back, pulled defendant's left wrist up behind defendant's back, and, in Baker's words, "assisted [defendant] to face the wall." Baker was going to handcuff defendant, but after a few seconds, defendant became tense, clenching his hands and breathing heavily. Baker ordered defendant to place both hands behind his back, but defendant "spun to his left," and Baker "swung around and took [defendant] down." Baker lost his footing and fell down next to defendant. While both were on their knees, defendant punched Baker twice in the face. Baker stood, then he and other deputies began fighting with defendant. Baker repeatedly punched defendant in the head and face and Deputy Adolph Esqueda repeatedly punched defendant in the midsection. Deputy Lim sprayed defendant in the face with pepper spray several times. According to Esqueda, defendant quickly stopped fighting, but according to Baker, the pepper spray seemingly did not affect defendant, who continued to fight. At some point, the deputies subdued and handcuffed defendant. Defendant was charged with resisting an executive officer. About 18 months after the incident, after speaking with the prosecutor, Esqueda wrote a supplemental report reflecting that after defendant was handcuffed he said, "Fuck you Baker, I knocked your ass out, I got you."
An incident on September 11 gave rise to three charges: resisting an executive officer and two counts of battery by gassing. Defendant had been let out of his cell to retrieve his breakfast from the dayroom and was refusing to go back into his cell and to attend court. After a sergeant attempted to negotiate defendant's return to his cell, Mark Tadrous, Monty Gudino, and other deputies were summoned to form an emergency response team to handcuff defendant. Another deputy videotaped the events and the video was shown at trial. (We have also watched the video.) As the team of deputies entered the day room, defendant repeatedly yelled at the deputies, urging them to "shoot." When the deputies got near him, he threw the contents of a bowl at them. Tadrous and Gudino were struck on their arms and uniforms with a mixture of urine and feces. Deputies repeatedly fired plastic and foam bullets and a Taser at defendant, who eventually fell to the ground. Deputies handcuffed defendant and took him to the clinic, where a physician removed a Taser dart from defendant's arm. Throughout his time in the clinic, defendant made statements such as, "I needed that man," "I love it. I love it," "No pain, no gain. I love pain. In fact, it didn't even hurt," "I'm fine, I'm excellent. Yea, I feel like a giant man. Uh, yea, ya know, some would say that's a love tap. Yea. Love it," "Don't trip, I need that ah, that ah, you know, like Batman, he got that energy flow," "That shit felt good though. That shit felt good. I'm gonna have to try that some more," and, "Hit me one more time, don't trip. Hit me again, I like it man, it was fun. Shit felt good man."
The third battery by gassing occurred on September 13, when defendant somehow sprayed a mixture of urine and feces onto Deputy Bensobhi Ben-Sahile's face and neck as the deputy checked on defendant through the solid door of a disciplinary cell. As a result, Ben-Sahile suffered an eye infection and missed work for three days.
The jury convicted defendant of custodial possession of a weapon, two counts of resisting an executive officer, and three counts of battery by gassing. Defendant admitted that four prior convictions alleged as strikes were his, but argued that three of them were not strikes within the scope of the "Three Strikes" law. The trial court found that all four were strikes. Defendant moved to dismiss the strike findings. The court denied the motion and sentenced defendant to six consecutive third-strike terms of 25 years to life, for a total of 150 years to life in prison.
1. Refusal to instruct on section 148 as lesser included offense
Section 69, under which defendant was charged and convicted, states, "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment." "The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." (In re Manuel G. (1997) 16 Cal.4th 805, 814.) The first form of a violation of section 69 "encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future." (Manuel G., at p. 817.) The second form of violating section 69 "assumes that the officer is engaged in such duty when resistance is offered," and "the officers must have been acting lawfully when the defendant resisted arrest." (Manuel G., at p. 816.)
The trial court considered instructing upon a violation of section 148 as a lesser included offense of section 69, but ultimately decided not to do so because it concluded the evidence did not support a conviction of only the lesser offense. Defendant contends that for count 2 (pertaining to Baker), section 148, subdivision (a)(1) was a lesser included offense of section 69 and the trial court was required to instruct upon it. Section 148, subdivision (a)(1) states, "Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also ...