Opinion
F081379
04-08-2022
THE PEOPLE, Plaintiff and Respondent, v. TENACE DEMOND KNIGHT, Defendant and Appellant.
Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. F10100267. Timothy A. Kams, Judge.
Susan L. Jordan, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2011, appellant Tenace Demond Knight was convicted of possession of a weapon in a custodial institution (Pen. Code, § 4502, subd. (a)) and sentenced to the third strike term of 25 years to life.
All further statutory citations are to the Penal Code unless otherwise indicated.
In 2015, the superior court denied Knight's petition for resentencing, filed pursuant to Proposition 36 and section 1170.126, and found he was statutorily ineligible for relief. This court affirmed the order on appeal.
In 2020, Knight filed another petition for resentencing under section 1170.126, and it was, again, denied. On appeal, Knight's appellate counsel has filed a brief which summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
On this court's own motion, and upon notice to the parties, we take judicial notice of the appellate records and this court's nonpublished opinions in Knight's two prior appeals: People v. Knight (May 25, 2012, F062442) and People v. Knight (July 28, 2017, F072626). (Evid. Code, § 459, subds. (a), (c); § 452, subd. (d)(1).) The factual and procedural backgrounds are partially from these two records.
On May 6, 2009, Correctional Officer Michael Phillips was posted in the control booth at Pleasant Valley State Prison when he observed inmate Timothy Freeman place his laundry bag on a bench and then return to his cell. A short while later, Knight approached the bag and picked it up. Since this is a common method for inmates to pass contraband, Phillips told Knight to place the bag on the floor so that a correctional officer could search it. When the floor staff returned to the area, they placed Knight in handcuffs.
Knight was still holding the laundry bag when he was approached by Correctional Officer Mark Ausburn. Knight initially refused to turn the laundry bag over to Ausburn. Instead, Knight turned his back to Ausburn and reached into the bag. Ausburn grabbed Knight, gained control over him, and placed handcuffs on him. Knight was placed in a holding cell.
Officer Ausburn searched Knight's cell later that morning and located an "inmate-manufactured weapon" on the bottom shelf in the cell. The item was a piece of metal that appeared to be a nail and was approximately four inches long and sharpened at one end.
Correctional Officer Maria Barajas searched the laundry bag after Knight dropped it on the ground. Inside the bag she found a pair of tennis shoes. There was an envelope inside the shoes, and the envelope contained two items. Barajas described one of the items as weapon stock without a handle, and the other item as a weapon with a handle and sharpened to a point. She considered both to be inmate manufactured weapons. The laundry bag had a label on it. Two different cells were listed on the label. One of the cells listed on the label was for Knight's cell.
Correctional Lieutenant James Daley described the two weapons retrieved from the laundry bag as two pieces of round metal stock, one with a cloth wrapped around it for a handle and "sharpened to a point." Both items could do serious bodily injury if used as a weapon.
Knight testified that he was assigned to the upper bunk in his cell, and he stored his personal property on the upper shelves, which were his assigned shelves. The only exception was his television and his hot pot, which were stored on the lower shelves because he shared those with his cellmate.
On the day in question, Knight ate breakfast and then returned to his cell and retrieved his shower items, which were in his laundry bag. He put his laundry bag in the day room so he could shower later. There were about six to 10 laundry bags in the day room at the time. After socializing, Knight retrieved a laundry bag from the bench. He was then taken to the program office.
Knight also explained his cell door was opened after he was taken to the program office, and anyone could have put the other weapon in his cell during the four hours between the time that he was removed from his cell and the cell was searched.
On cross-examination, Knight admitted the item found in his cell could be used as a weapon. Knight described the two items found in the laundry bag as weapon stock because they did not have points on them.
PROCEDURAL HISTORY
Knight was charged with one count of violating section 4502, subdivision (a), possession by a person confined in any penal institution of "any instrument or weapon of the kind commonly known as a blackjack, slingshot, 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." It was also alleged that he had seven prior strike convictions and one prior prison term enhancement (§ 667.5, subd. (b)).
On April 8, 2011, after a jury trial, Knight was convicted as charged and admitted the prior conviction allegations.
On May 6, 2011, the court held the sentencing hearing, and denied his motion for new trial. The court considered his request to dismiss the prior strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defense counsel stated that six of the seven prior strike convictions "occurred in one course of conduct, but it's been ruled that they were separate enough" to impose separate sentences. The court denied the request to dismiss the strike convictions.
The court stated:
"[I]t is the Court's view that this is not a case which the Court will strike any strikes, crimes that constitute the strikes for violent offenses. And although [Knight] was young, not much time has elapsed between those offenses and the offense before the Court, which although not a violent crime in and of itself, certainly has that underpinning because the objects in question here that were found and attributed to [Knight] are objects described as stabbing weapons. Other than actually stabbing someone or killing someone in prison, I think you can't do much worse. It's very serious, as are the prior offenses. I do not feel any compulsion to strike prior strikes."
The court sentenced Knight to the third strike term of 25 years to life plus one year for the prior prison term enhancement.
Knight's First Appeal
On May 25, 2012, this court affirmed Knight's conviction and sentence, and rejected his argument that the jury was not properly instructed on the elements of the offense. (People v. Knight, supra, F062442.)
PROPOSITION 36
The Three Strikes Reform Act of 2012 (hereinafter sometimes referred to as Proposition 36) "reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that are neither serious nor violent." (People v. Johnson (2015) 61 Cal.4th 674, 679.) "[T]he Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules." (Id. at p. 682.) "The procedure allows an inmate currently serving a third strike sentence for a nonserious, nonviolent felony conviction to file a petition to recall the third strike sentence and be resentenced as a second strike offender." (People v. Thomas (2019) 39 Cal.App.5th 930, 934 (Thomas).)
"[T]he petitioning defendant has the initial burden of establishing eligibility, and if that burden is met, then the prosecution has the opportunity to establish ineligibility on other grounds." (People v. Johnson (2016) 1 Cal.App.5th 953, 963; see Thomas, supra, 39 Cal.App.5th at p. 935 ["The petitioning defendant has the initial burden of establishing a prima facie case for eligibility for recall of the third strike sentence." (Italics omitted)].) Once a prima facie showing is established, the burden shifts to the prosecution to establish ineligibility beyond a reasonable doubt. (People v. Frierson (2017) 4 Cal.5th 225, 240.) However, "[n]ot every inmate who is currently serving a third strike sentence for a nonserious, nonviolent felony is eligible for resentencing .…" (Thomas, supra, 39 Cal.App.5th at p. 934.) Relevant here, an inmate is ineligible for resentencing if, "[d]uring the commission of the current offense, [he or she] used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person." (§ 667, subd. (e)(2)(C)(iii); see § 1170.126, subd. (e)(2); People v. Estrada (2017) 3 Cal.5th 661, 667.) A deadly weapon is" 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.'" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; see People v. Pollock (2004) 32 Cal.4th 1153, 1178.) "A defendant is armed if the defendant has the specified weapon available for use, either offensively or defensively." (People v. Bland (1995) 10 Cal.4th 991, 997, italics omitted.) A defendant may be considered armed for purposes of determining resentencing eligibility even if he or she is convicted solely of a weapon possession offense. (See People v. White (2016) 243 Cal.App.4th 1354, 1362-1363; People v. Valdez (2017) 10 Cal.App.5th 1338, 1356-1357.)
"Our Supreme Court has expressly held that in determining a petitioner's eligibility, the trial court may rely on facts not found by a jury, and '[a] reviewing court, in turn, must defer to the trial court's determination if it is supported by substantial evidence.'" (Thomas, supra, 39 Cal.App.5th at p. 935; quoting People v. Perez (2018) 4 Cal.5th 1055, 1059.) "In reviewing the trial court's eligibility determination, we view the evidence in the light most favorable to the trial court's findings without reassessing the credibility of witnesses or resolving evidentiary conflicts." (Thomas, at pp. 935-936.)" 'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'"' the court's findings." (Id. at p. 936.)
Knight's First Petition
On March 11, 2013, defendant filed a petition, in pro. per., for resentencing pursuant to Proposition 36 and section 1170.126, using a preprinted form that asserted he was entitled to resentencing on his third strike term of 25 years to life after his conviction of violating section 4502, subdivision (a). On May 17, 2013, the court held a hearing on the petition, and the public defender appeared for Knight; the matter was continued.
On December 5, 2014, the People filed an answer and argued that Knight was not eligible for relief pursuant to the provisions of section 1170.126, section 667, subdivision (e)(2)(C)(iii), and section 1170.12, subdivision (c)(2)(C)(iii), because "[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person."
On May 14, 2014, Knight's counsel filed a reply, and argued that the arming exclusion to section 1170.126 did not apply because he did not have ready access to the weapons, and the exclusion was only triggered if there was an additional tethering offense.
The Court's Denial
On October 22, 2015, the court denied the petition, agreed with the People's arguments, and found Knight was not statutorily eligible for relief because he was armed with a deadly weapon during the commission of the offense of violating section 4502, subdivision (a).
Knight's Second Appeal
On July 28, 2017, this court affirmed the court's order that denied his section 1170.126 petition, based on section 1170.126, subdivision (e)(2), that states an inmate is ineligible for resentencing if "[t]he inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12." (§ 1170.126, subd. (e)(2), italics added.)
We explained: "Paragraph (2), above, applied to defendant. His current sentence was imposed for an offense appearing in section 667, subdivision (e)(2)(iii) because '[d]uring the commission of the current offense, [he] ... was armed with a ... deadly weapon ....'" (See People v. Knight, supra, F072626, at p. 3)
In reaching this conclusion, we relied on People v. Valdez, supra, 10 Cal.App.5th 1338, that held a violation of section 4502, subdivision (a) need not be tethered to another offense. As explained in Valdez: "Because section 1170.126 requires only that the arming be 'during' the commission of the crime, there is no facilitative nexus requirement as when the arming must also be in furtherance of a felony." (Valdez, supra, 10 Cal.App.5th at p. 1349.) Valdez further held: "Similarly, here, defendant was armed with the deadly weapon during his commission of possession of a sharp instrument in prison. Contrary to defendant's contention, the possession of the weapon need not facilitate another felony, e.g., drug possession or drug manufacturing. We need only look to whether the inmate was armed during the possession of the weapon." (Valdez, supra, 10 Cal.App.5th at p. 1350.)
The California Supreme Court initially granted and then dismissed review in Valdez. (People v. Valdez (2018) 232 Cal.Rptr.3d 731.)
Knight's Second Petition
On April 27, 2020, Knight filed another petition seeking resentencing pursuant to Proposition 36 and section 1170.126. He, again, used a preprinted form that asserted he was entitled to resentencing of his third strike term of 25 years to life after his conviction for violating section 4502, subdivision (a).
The Court's Denial
On June 5, 2020, the court filed an order that summarily denied the petition.
"This is not [Knight's] first petition. [¶] On March 11, 2013 [Knight] filed his first petition seeking resentencing under … section 1170.126. On October 22, 2015, the petition was denied, as the Court found defendant ineligible for resentencing under the Act. On July 28, 2017, the denial of the petition was affirmed on appeal…. The remittitur was issued on September 28, 2017.
"[Knight] is not entitled to relitigate the denial of his petition for resentencing, nor is he entitled to file successive petitions seeking that same relief, absent a change in the law. [Knight] cites to no authority that would permit him to file a successive petition, nor does he cite to any change in the law that would justify his successive petition."
On June 29, 2020, Knight filed a notice of appeal from the court's order of June 5, 2020.
On August 27, 2020, Knight's appointed counsel filed an application for an order concerning the appealability of this case. On February 18, 2021, this court filed an order that stated an order denying a petition under section 1170.126 is an appealable order under section 1237, subdivision (b), and "[i]ssues regarding threshold procedural questions of appealability are not to be confused with whether or not the petition presents meritorious claims."
DISCUSSION
As noted above, Knight's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that Knight was advised he could file his own brief with this court. By letter on February 26, 2021, we invited him to submit additional briefing. He has not done so.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
As correctly noted by the superior court, there has been no change in authority that would have resulted in Knight being eligible for relief under section 1170.126, and his petition was properly denied.
DISPOSITION
The order is affirmed. --------- Notes: [*] Before Levy, Acting P. J., Peña, J. and Smith, J.