PEOPLE v. SMITHAppellant’s Petition for ReviewCal.March 28, 2012LIU,J. // IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,) )No.S Plaintiff and Respondent, ) ) 2 Crim. B223181 Vv. ) ) DEWONE T. SMITH, ) Los Angeles County ) Case No. BA337647 Defendant and Appellant. ) ) FILE COURT MAR 2 8 2012 PETITION FOR REVIEW Frederick K. Ohilrich Cleric Deputy MELANIE K. DORIAN California State Bar No. 197955 P. O. Box 5006 Glendale, California 91221-5006 Telephone: (818) 937-0434 Attorney for Petitioner DEWONE T. SMITH TABLE OF CONTENTS TABLE OF CONTENTS1.0.eeeecsseeeeeeeteeseeeseeeeeeeaes ctesseateavestseesssaasenvenseenecssacareseseesarngsits i TABLE OF AUTHORITIES...............steesseserasnsecoseeseseasesssscseassssssssecncsccsssegessedaceseeeesseeneeess il PETITION FOR REVIEW....0....cccccsssssssseccesesescessessseecessacsececeseeseeeesctsetseseesseaeeaeaeseseeesenses 1 ISSUE PRESENTED FOR REVIEW...uu...ccccscsccsssscssseeesesescecessesecsneesenessesssenseaeeseeeeassseees2 NECESSITY FOR REVIEW.......cceeccessessesseenseeesstesaneesssssssesossacnsesavesseeceesescesSs oseeseseseeteeee 3 ARGUMENTuu... cccccsecccessssesscsssscsssecsseenacsccaceeeseessescseesaconsasscsacseeasscecsesesssacstsesensensessaeseees 21 I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHENIT REFUSED TO INSTRUCT ON PENAL CODE SECTION 148, SUBDIVISION (A)(1), AS A LESSER INCLUDED OFFENSE OF PENAL CODE SECTION 69, IN COUNT 2, AND THE COURT OF APPEAL’S DECISION TO THE CONTRARY REQUIRES REVIEW........:csccesceseeesseeees4 CONCLUSION.....ccee cccsecsseesescescssesssescassaeceeseeseessesecenssaceesactaceuseeseseessdicacseseeseeeaeseesesesess 21 CERTIFICATE OF WORD COUNT EXHIBIT A PROOF OF.SERVICE TABLE OF AUTHORITIES Cases Conde v. Henry (9™ Cir. 1999) 198 F.3d 734.....c0.000vesessesseeeLisdaaseiee vestessesatessesssstersss 65°20 In re Manuel G. (1997) 16 Cal.4™ 805 ..csssessesssssssecscssnsesesseesseentenes cecubebeslecbevssesucoatees 8, 14-16 People v. Barton (1995) 12. Cal.4186c.cc.sssssesssseesees setsatarlasseteteressberstestessiesssvessveaeee LL People v. Belmares (2003) 106 Cal.App.4™ 19 .....sssssssecssecseieeoessesessesscesiesee 559, 10, 14, 15 People v. Birks (1998) 19 Cal.4" 108..........seustipeatsssssesscoeseneelseldnestessatsreesses 657, 13,15, 19 People v. Breverman (1998) 19 Cal.4 142 ...ceccsssssccseessesessessesssnsssentesseeessees vlaveatcaees Ty 20 People v. Carrasco (2008) 163 Cal.App.4" 978....cssscscssscssessesesssecsseteetsvases 5, 13, 14, 20 People v. Carter(2003)30 Cal.4™ 1166.scssssssesesesnssessensenssssseeeeecensenectseessnenseeeenee 6 People v. Gutierrez (2009) 45 Cal.qt 789 .oescabssbsesyensansanssesssesetenebereits|doses|_vesseeseeseeoeee 6 People v. Hughes (2002).27 Cal.4™ 287 cs.ciecssessesessesessseceeesneeeseseseeseneecsteseesanseseajeceeseseeseen 7 People v. Kraft (2000)23 Cal.A O78 oo cececsescsccescesecsecssecsesssssesssssssessesnssececetesessnsacseeeesseneee 6 People v. Lacefield (2007) 157 Cal.App.A 249 oo eecsssesdanddesessaessscecesesseecees OLA, 16, 18, 19 People v. Ledesma (2006) 39 Cal.AO 64D oeeeccesecsscessssescccssssssssesscsnssesescsesesessssesseeeseeseeeeeanes 7 People v. Lopez (2005) 129 Cal.App.4® 1508 00... eeececesseccescecesseeeeneeeasseeveseeesees 8-10, 14-16 People v. Mendoza (2000) 24 Cal.4'” 130 ...ceecssssssssssccesecsesessteestessstscsessnesssnneessscesneeeessesss 7 People v. Montoya (1994) 7 Cal.4™ 1027 ..essssesssssssscsssecseecsseesseesseeessneecetessesssnneessesssnneessnes 6 People v. Ponce (1996) 44 Cal.App.4™ 1380 .....ssscsessssssecseeecsesesneessstesssessseessnstessecesneenssnesss 6 People v. Reed (2006) 38 Cal.4? 1224 .....cecsssccsssssseesseeseeenseessecreeseeestssstesneesssseessessseesseee LO People v. Robles (1996) 48 Cal.App.4™ Supp. L..scccseecssessssssseecetsessessessstsssessssneesnasseessnes 12 People v. Rogers (2006) 39 Cal.4™ 826 w...secssssssssssssssseeeceecseseneersserss sesaueneseesucssssesesesssesscssss 7 People v. Sanchez (2001) 24 Cal41 983 ...cecccccscsscccesseeossssesstssssesecsessssseessesessesseseseesesstessanes 7 People v. Sedeno (1974) 10 Cal.3d 703 .......:ssecsscessesssseseesssesssseeneseenesteneseneeacsesssasensneenennens 6 People v. Watson (1956) 46 Cal.2d 818 .......cccccsesesesceessesessssseseesnseeessenseeneseenesesenacys 7,12 People v. Wickersham (1982) 32 Cal.3d 307 ......ccsssssssscessesssessesesnenseeesseceeesssnenseasesseneas 11 United States v. Unruh (9" Cir. 1988) 855 F.2d 1363 ..cccessssscsssssessessecseseesesssessteceesceeeensesecs 6 TABLE OF AUTHORITIES (Cont’d) Constitution U.S. Const, amend. V ..........cccccccccscccscsccccssssnscecssssuscscsssccccccsesccasseesenscceesecessesecensecacceseeseeees 6 USS. Const., amend. VI...ccceececessscceccessscccnsssseccsecesssesccssccecersaececerecesssececcececsnccesenccececess 6 U.S. Comnst., amend. XIV...eccoeececesseecccsceseesceccecseeceseseccecscescesessecesececanscesececstecenseece 6 Statutes California Penal Code, §69 .0.........cccccccescesesscessecsscsssccesscssssccsssesestsesseeseseerae 2-5, 7-10, 13-16 California Penal Code, §148 ......ccccecccsssscesssscsecsscecssesscesssecccessecctsesesenseens2-5, 7, 9-16, 19 Court Rules California Rules ofCourt, rule 8.500 .........c..cccccccccecscssccesecescccescececececccccsecensseeesesececececes 3 Secondary Sources CALCRIM NO.2670 .........:cccssscessessssesessssessssescenssesneseesesscseusssscsusscssesussseasssucacsceaeareneneseeacs 12 CALCRIM NO.2671) o0....ececccsessscsesesscncsssessessessscesesccensesssccsssssersssecessescsssscsceaccecetseescnseneeaes 17 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA.) ~ )No. S$ Plaintiff and Respondent, ) ) 2 Crim. B223181 V. ) ) DEWONE T. SMITH, ) Los Angeles County ) Case No..BA337647 Defendant and Appellant. ) ) PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Defendant and Appellant, Dewone T. Smith (“petitioner”), respectfully petitions this Honorable Court for review in the above-entitled matter followingthefiling of a published opinion by the Court ofAppeal of the State of California, Second Appellate District, Division One, which, in part, affirmed the judgment. A copy ofthe Court ofAppeal’s opinion, filed on February 24, 2012, is attached as Exhibit A. ISSUE:PRESENTED FORREVIEW Is Penal Codesection 148’,a lesser included offenseofresisting by force under Penal Codesection 69?' 1 Unless otherwise indicated, all statutory references are to the Penal Code. 2 NECESSITY FOR REVIEW Petitioner respectfully requests that review begranted under ‘ California Rules of Court, rule 8.500 (b)(1), as it appears necessary to settle important questions of law and resolve thesplit of authority as to whether section 148, subdivision (a)(1) is a lesserincluded offense of section 69 underthe theory of forcible resistance. STATEMENT OF CASE AND FACTS Petitioner incorporatesthe facts as presented by the Court ofAppeal in its opinion, and has:added additional facts as needed in the Argument section. ARGUMENT I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO INSTRUCT ON SECTION 148, SUBDIVISION (A)(1), AS A LESSER INCLUDED OFFENSE OF SECTION 69, IN COUNT 2, AND THE COURT OF APPEAL’S DECISION TO THE CONTRARY REQUIRES REVIEW Thetrial court refused to instruct on section 148, as the lesser included offense ofresisting with force, in violation of section 69, as charged in count2. This wasreversible error, because there was substantial evidence from which the jury could have inferred thatpetitioner had resisted the deputies, albeit with lawful force and in response to excessive force utilized by the deputies. The Court ofAppeal disagreed that section 148 was a necessarily included offense of section 69, and even so, it concluded there was not substantial evidence to have warranted the instruction. (Ex. A, pp. 6-9.) For the reasons discussed below,petitioner submits that the Court ofAppeal’s decision was error and requires review. ' A. Background _ Duringtrial, the court recognized its potential sua sponte duty to. instruct on the lesser included offense of section 148, subdivision (a)(1),-. with respectto both counts 2 and 5. (3 R.T. pp. 1299-1300, 1507, 1511- 1513, 1636-1641.) The prosecution took the position that section 148 was not a lesser included offense of section 69, while petitioner requestedthat: the instruction be given. (1 C.T. pp. 137-149; 3 R.T. p. 1300; 4 R.T.pp. 1801-1802.) Ultimately, the court refused to include the instruction, in either count 2 or 5, finding that there was-not “substantial evidence” to warrant this. (1 C.T. pp. 170-172; 4 R.T.pp. 1808, 1874- 1877.) At sentencing, the court acknowledged that, in appropriate cases, section 148, subdivision... (a)(1), could be alesser included offense ofsection 69. (4 R.T. p. 3003.) Still, the court opined that, based on the facts of the case, it had properly refusedto give the instruction in both counts. (4 R.T. pp. 3003- 3004.) The court cited People v. Breverman (1998) 19 Cal.4™ 142, and later, People v. Carrasco (2008) 163 Cal.App.4” 978,in support ofits conclusion. (4 R.T. pp. 1808, 3003-3004.) B. General Principles Courts have recognized a general obligationon the part oftrial courts, even in the absenceofa request, to instruct the jury on “general principles of law that are closely and openly connected to the facts and that are necessary forthe jury’s understanding ofthe case.” (People v. Carter (2003) 30 Cal.4” 1166, 1219; citing People v. Montoya (1994) 7 Cal.4. 1027, 1047.) Trial courts mustinstruct the jury on defense theories that are “supported bysubstantial evidence.” (People v. Ponce (1996)44 Cal-App.4” 1380, 1386.) A defendant is not entitled to an instruction on a lesser related offense where the prosecution objects. (People v. Birks (1998) 19 Cal.4™ . 108, 136.) However, a sua sponte duty to instruct, even absent a request and overthe objections ofthe parties, arises with respect to lesser offenses necessarily included inthe chargedcrime, where there is “substantial evidence”that the defendantis guilty ofthe lesser. (People v. Gutierrez (2009) 45 Cal.4"-789, 826; People v. Kraft (2000) 23 Cal:4" 978, 1063.) A refusalorfailure to give such instruction violates the Sixth and Fourteenth Amendmentrights to adequate instructions on the theory of the defense, the Sixth Amendmentright to a jury trial, and the Due Process — Clause.(U.S. Const., amends. V, VI, XIV; Conde v. Henry (9" Cir. 1999) 198 F.3d 734, 739-740; United States v. Unruh (9" Cir: 1988) 855 F.2d 1363, 1372; People v. Birks, supra, 19 Cal.4™ at 119; People v. Sedeno (1974) 10 Cal.3d 703, 720.) Substantial evidence has been defined as evidence from which a reasonable jury could concludethat the lesser offense, but not the greater, was committed. (People v. Hughes (2002) 27 Cal.4" 287, 365-367: People v. Mendoza (2000) 24 Cal.4" 130, 174.) A lesser necessarily included offense, in turn, has been characterized as follows: {In} California, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations omitted.] (People v. Birks, supra, 19 Cal.4" at 117; see also People v. Sanchez (2001) 24 Cal.4" 983, 988.) The erroneousfailure to instruct on a lesser included offense generally is subject to the harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836-837. (People v. Breverman, supra, 19 Cal.4" at 177-178.) Reversalis required “only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of.” (People v. Rogers (2006) 39 Cal.4" 826, 867-868; People v. Ledesma (2006) 39 Cal.4" 641, 716.) C. Section 148, subdivision (a)(1) as the Lesser Included Offense of Section 69 Section 69 provides: “Every person who attempts, by means of any threat or violence, to deter or prevent an executiveofficer from performing any duty imposed upon such officer by law, or:who knowinglyresists, by the useofforce or violence, suchofficer, in the performanceofhisduty, is punishableby a fine not exceeding ten thousand dollars ($10,000), or by imprisonmentin the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.” This statute may be violated irn two ways—first, “by threats or violence to deter or preventan officer from performing a duty imposed by . law;” and second, by “resisting byforce or violence an officeriin‘the performanceofhis or her duty.” (In re Manuel G. (1997) 16 Cal.qe 805, 814.) The formeris called “attemptingto deter,” and the latter or secon d type is knownas “actually resisting an officer.” (People v Lopez (2005) 129 Cal.App.4" 1508, 1530: see People v. Lacefield (2007) 157 Cal.App.4" 249, 255.) | a These two types of offenses undersection 69 each have different elements. (in re Manuel G., supra, 16 Cal.ae at 814.) The fir st one includes “a threat, unaccompanied by any physical force,” and an a ttempt to) deter:an immediate or future performanceofa duty. (Id.at 817.) T he second type involves the use of“force or violence”against an officer who is lawfully engagediin the performance of his or her duty at the time of the resistance. (Id. at 815-816.) Section 148(a)(1) states, in pertinentpart: “(a)(1) Every person who willfully resists, delays, or obstructs any... peace officer... in the discharge or attempt to discharge any duty ofhis or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousanddollars ($1,000), or by imprisonmentin a county jail not to exceed one year, or by both that fine and imprisonment.” Muchlike the second type of offense in section 69, section 148, subdivision (a)(1), includes the elements of an officer’s present performance of duty, as well as resistance. (People v. Lacefield, supra, 157 Cal.App.4" at 256-257.) Where the two differ is the requirement in section 69 that the resistance be carried out by “force or violence,” whereas section 148, subdivision (a)(1), can be violated without force. (/d. at 257.) Several appellate courts have considered whethersection 148, subdivision (a)(1), is the lesser included offense of section 69 and reached varying conclusions. (See People v. Lacefield, supra, 157 Cal.App.4"at 257, 258, fn. 4, 259, fn. 5 [declaring section 148, subdivision (a)(1), the lesser included of the second type of offense in section 69, based on the statutory elements test]; but see People v. Lopez, supra, 129 Cal.App.4"at 1532-1533 [finding that section 148, subdivision (a)(1), was not a lesser included, but a lesser related offense of section 69]; see also People v. Belmares (2003) 106 Cal.App.4" 19, 24, disapproved on another ground in People.v. Reed (2006) 38 Cal.4" 1224, 1228[holding that section 148, subdivision (a)(1), was not the lesser included offense of section 69 under either the statutory elements or accusatory pleading tests].)- In People v. Lacefield, supra, 157 Cal.App.4" at 257-259,Division Eight ofthe Seconddistrict criticized the holding in Belmares and Lopez, pointing out that theFifth and Sixth Districts had failed to take into account the secondtype ofoffense in section 69 in deciding the issue. Division Eight explained that in both cases, the courts had erroneously focused on — the element of attempting to deter the officer’s immediate performance of a duty or a future one, without discussing the second type ofoffense involving actual resistancewith force. (People v. Lacefield, supra, 157. Cal.App.4° at 257-259, citing People v. Belmares, supra; 106 Cal.App.4” at 24, and People v. Lopez, supra, 129 Cal.App.4" at 1532-1533.) Having determined that section 148, subdivision (a)(1), was a lesser includedofthe secondtype offense in section 69, the court then decided whether there was substantial evidence to have warranted the lesser included offense instruction. (People v. Lacefield, supra, 157 Cal.App.4" at 259-261.)In doing so, the court summarized the testimonyofthe various officers and percipient witnesses offered by both sides. (/d. at 260-261.) Several officers had respondedto a disturbancecall outside a bar and decided to close down the bar due to overcrowding.(Id. at 252.) According 10 to one sergeant, the defendant ignored commandsto stop and kept walking toward him, at which'time, he placed hishands on the defendant’s chest, whothen slapped his arm awayand continued to move toward the sergeant. (/d. at 260.) The sergeanttestified that this led to a physical altercation, and eventually, he took the defendant down. ([bid.) Twoofficers corroborated the sergeant’s testimony, while another officer did not observe any aggressive behavior by the defendant. (Jbid.) The defense witnesses, on the other hand, contradicted the sergeant’s version of the incident, testifyingthat the defendant did not exhibit any assaultive behavior and merely casually approachedthe sergeant; who pushed him to the ground. (/d. at 261.) - In concluding that there was substantial evidence to support a violation of section 148, subdivision (a)(1), thus; warranting the instruction, the court held: The. jurors were entitled to accept or reject all of the testimony, or a portion of the testimony, of any of the above witnesses. (See People v.. Wickersham (1982) 32 Cal.3d 307, 328 [], disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201 []. They might have believed part of what the officers said and part of what the defense witnesses said. They therefore. might have found that appellant acted unlawfully, by arguing with Sargent and refusing to disburse, but he did not use force unlawfully because his use of force was a response to Sargent’s unlawful use of force. : 11 (People v. Lacéfield, supra, 157 Cal.App.4" at 261.) The court also specifically noted that the jury might have foundthat the defendant’s words “went beyond verbalcriticism,into the realm of interference with duty.” (Ibid., citing e.g., People v. Robles(1996) 48Cal.App.4” Supp.1, 6.) Finally, given the varying testimony and versions ofthe encounter, the court foundthat the evidence of guilt was not overwhelming,and that the prejudice resultingfrom the failure to instruct on section 148, - subdivision (a)(1), was not harmless. (Peoplev. Lacefield, supra, 157 Cal.App.4" at 262, citing People v. Watson, supra, 46 Cal.3d at 836.) As such, the courtruledthatthe defendant wouldhave obtained a more favorable outcomehad the jury receivedthe instruction. (People v..- Lacefield, supra, 157 Cal.App.4”. at 262.) Tothat end, the People argued that since-the court instructed onthe meaning of unlawful force with CALCRIM No.2670,“it necessarily found that [the defendant] unlawfullyused force or violence.” (People v. Lacefield, supra, 157 Cal:App-4” at 262.) The courtdisagreed and observed as follows: ; - In ont view, the error was prejudicial because the jury was given no alternative other than a not. guilty verdict if it believed that appellant’sinitial resistance was unlawful, but there was no unlawful. use of. force..The absence of an instruction on section 148(a)(1) forced “an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.” [Citation omitted.] “(Neither party has a greater interest than the other in 12 gambling on an inaccurate all-or-nothing verdict when the pleadings and evidence suggest a middle ground....” [Citation omitted.]The pleadings and evidence here suggested a middle ground, a conviction for section 148(a)(1), but the jury was not given that option. (Id., quoting People v. Birks, supra, 19 Cal.4™ at 119, 127.) Subsequently, in People v. Carrasco, supra, 163 Cal.App.4” at 984, Division Eight ofthe SecondDistrict reaffirmedits prior ruling that section 148, subdivision(a), wasa lesser included of the second type offense in section 69. However, the court foundno error in not including the instruction, because there was not substantial evidence that the statute had been violated. (Id. at 984-986.) The court explained: The People’s witnessestestified appellant was knowingly and unlawfully resisting both Deputy Macias and Detective: McGuffin through the use of force or violence. Appellant had to be physically taken to the groundby Detective McGuffin. because he refused to comply with Deputy Macias’s repeated orders to remove his hand from his: duffle bag. Appellant failed to comply with several officers’ repeated orders to relax and Macias’s orders to “stop resisting.” He continued: to struggle with Macias and McGuffin, as well as several other officers. Macias attempted to control appellant’s torso, while three other detectives attempted to control appellant’s arms. Appellant placed his hands and arms underneath his body, was “yelling, kicking, [and] cussing,” and said he would “kick [the officers’] ass[es].” Appellant continued to squirm and refused to give his right hand to Macias. Appellant did not comply until after Lieutenant Rothans administered the use of pepper spray. There was no contrary evidence disputing the officer’s description of the struggle onthe floor. Hence, the jury would have had norational basis to conclude appellant wrestled with the officers, for which they convicted 13 him of resisting or delaying an officer, but the struggle did not involve force orviolence; accordingly, the trial court properly instructed the jury. by not instructing it with section 148, subdivision (a) as:a lesser included offense. » (Id. at 985-986.) D. Analysis Thetrial court properlynoted thatsection 148, subdivision (oi was a lesser included offense of section 69. (I CT. pp. 170-172; 4 R.T. pp. 1808, 1874-1877, 3003-3004.) This was consistent with thee holdingin | People v. Lacefield, supra, 157 Cal.App.4" at 259-261. Under the statutory elements test, the Court of Appeal rejected the analysis in Lacefield, and instead, relying on Belmares and Lopez,it opined that “[HJooking at the statute as a whole,” section 148 was not a lesser included offense of section 69, under the second theory ofresisting with force. (Ex. A,p. 7.) The Court ofAppeal opinedthat Lacefield had notcited any authority.for applying theStatutory elements test “to just half ofthe statute.” ([bid.) First, the absence of any such authority. did notinvalidate the conclusion reached in Lacefield. Thatiis how precedents auare set. Second, Lacefield id not simply apply the test teto “half of the statute.” Since section 69 criminalizes conduct under two separate theories, Lacefield properly focused its analysis on the second type offense of forcibleresistance. In re Manuel G., supra, 16 Cal.4" 805, is instructive. There, when explaining the two separate ways which section 69 could be violated, this 14 Court noted, “Because the minorisaccused only of attempting by threats to deter or prevent an officer from performing a duty imposed by law, weare concernedhere only. with the first type of offense under section69.” (Id.at 814; emphasis added.) It appears that this Court viewedeachof the two separate theories of culpability underthe statute, as a separate “offense.” (Ibid.) Asrelevanthere, this Court has also defined a lesser necessarily included offense as follows: [A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elementsofthe lesser offense, such that the greater cannot be committed without also committing the lesser.[Citations omitted.| (People y Birks, supra, 19 Cal.4" at 117; emphasis added.) Reading Manuel G. and Birks together, whethersection 148, subdivision (a)(1) is a lesser included offense of section 69, depends on which “type of offense” is alleged and presented tothe jury undersection 69. The Court ofAppeal’s analysis contradicts and/or ignores the distinction this Court has drawn between the two offenses under section 69, with each offense deserving a distinct analysis in terms ofwhat constitutes a lesser included offense. More importantly, Lopez and Belmares were wrongly decided.First, the court in People v. Lopez, supra, 129 Cal.App.4" at 1532, did not offer 15 an original:discussion onthe issue, but simply reiteratedthe holding in Belmares. Asthecourt in Lacefiled noted,.Belmares did not observe the distinction drawn betweenthe two types of offenses under section 69, and . mainly focused on the deterrence element ofthe first type offense. (People v. Blemares, supra, 106 Cal:App.4" at 24-26; In re Manuel G., supra, 16 Cal.4" at 814.) The Court ofAppealhere did not addressthis shortcoming. (Ex. A, p. 7.) In addition, the Court ofAppeal reached the sameconclusion under the accusatory pleading tetes . (Id. at 7-8.) However, the accusatory pleading test was:not relevant here. As the Court ofAppeal recognized, while the information alleged both typesofoffenses under section 69 i n count 2, the prosecution ultimately elected to proceed on the second type offense (Ibid.) Assuch, the Court ofAppealitself agreed thatt theissue should be evaluated under the statutory elements test. (Id. at 7.") | Finally, the Court of Appeal opined that even if section 148, subdivision (ay(1).was a lesser included offense, therevwasnot substant ial evidence to have justified giving the instruction. (Ud.at 7-8.)This wa s,in fact, the trial court’s reasoning.(1 CT. pp. 170-172;4 RT. pp. 1808, 1874- 1877, 3003-3004.) Petitioner submits this was error. | The information alleged a violation of section 69 in count 2, based on both theories of attempted delaying of the deputies in the lawful 16 performanceoftheir duties, as well as actually resisting with force. (1 C.T. p. 72) In the end, the prosecution proceeded under the second prong of actual use of force. (1 C.T. pp. 170-171; 4R.T. pp. 1802-1808, 1874-1875.) In its closing, the prosecution argued that petitioner used this force by hitting Deputy Bakerafter he took himto the ground. (4 R.T. pp. 1838- 1839.) The defense pointed out that petitioner was merely concerned about his legal paperwork and was not making“any aggressive moves” toward the deputy, but for simply refusing to follow commands, Baker “grabbed him” and “slammed himdownto the ground.” (4 R.T. pp. 1859-1860.) This, petitioner argued, was excessiveand unreasonable force by the deputy, who was considerably larger in size than petitioner was. (4 R.T.pp. 1860-1862.) Pursuant to CALCRIM No. 2671, the court also instructed the jury that an officer using “unreasonable or excessive force” was not lawfully performing his duties, in which case, the defendant could “lawfully use reasonable force”in self-defense. (1 C.T. p. 171; 4 R.T. pp. 1817-1820, 1876-1877.) Clearly, the court opined there was substantial evidence from whichthe jury could infer that Baker had used excessive force, as, in fact, he had. 17 Bakertestified that after having orderedpetitioner to face the wall, he eventually moved towardpetitioner, placed his hand on petitioner, grabbed hisleft wrists with his left hand, placed.his right hand on the center of his back and told him to face the wall:.(3 R.T. pp. 1210-1212, 1240- 1241, 1271-1272.) Baker. was taller and heavier than petitioner was. (3 R.T. pp. 1242-1243.) Baker then handcuffed him,and-as hefelt.that petitioner was becoming “tense,” he swung around and took him tothe ground. (2 R.T. pp. 1212, 1241-1242, 1272-1273, 1283.) Once.on the ground,petitionerhit Baker, but shortly after, hewas subduedby Bakerand Esquedo who wrestled and repeatedlystruck him inthe midsection and by Limwho applied pepper spray intohis eyes. (3 R.T.-pp. 1214-1217, 1239, 1241, 1243, 1256, 1259, 1272-1276, 1278-1279, 1283-1286, 1289.) Asit follows, there was substantial evidence from which the jury could have found that given Baker’s size, he could have simply handcuffed petitioner. The jury could have, therefore, concluded that swinging around and slammingpetitioner to the ground was excessive and unreasonabl e force, and that in hitting Baker, petitioner was respondingto the deputy’s use ofunlawful force. (Peoplev. Lacefield, supra, \57 Cal.App.4" at 261.) Thejury could havealso found that petitioner’s kicking and screaming while on the ground was the result of the pepper spra y, not an 18 attemptto resist. (3. R.T. pp. 1216-1217, 1243, 1244-1257, 1260, 1263- 1264, 1278-1279, 1285.) Finally, the jury could have foundthat petitioner’s repeated refusal to face the wall constituted a verbal interference with the deputies’ performance of lawful duties, but nothing more. (/bid.) If so, the jury could have, at most, convicted petitioner of a violation _ of section 148, subdivision (a)(1), whereas, the absence ofthe instruction forced ‘an all-or-nothing choice between conviction ofthe stated offense on the one hand, or complete acquittal on the other.’ (People v. Lacefield, supra, 157 Cal.App.4" at 262, quoting People v. Birks, supra, 19 Cal.4™ at 119, 127.) Therefore, the error was.not harmless and requires reversal. (People v. Lacefield, supra,157 Cal.App.4" at 262.) To further illustrate this point, the prosecution alleged and presented both theories of attempted delaying andresisting with force in count5.(1 C.T. pp. 73, 170-172, 179; 4 R.T. pp. 1802-1808, 1874-1877, 1885-1886.) Thefirst theory was put forth based on petitioner’s commentsthatifthe deputies attempted to approach him, he would get “physical.” (2 R.T.p. 630; 4 R.T. pp. 1836-1837.) According to the prosecution, petitioner was also guilty under the second prong, by throwing the bowl containing excrement, at the deputies. (2 R.T. pp. 638-639, 656, 658, 660-661, 664; 4 R.T. pp. 1837-1838.) 19 Based onthe testimony and the videotapeofthe incident, arguably, therewasnot substantialevidence that petitioner was using lawfulforce-- when throwing the bowl. (1.C.T.pp. 150-157;.2R.T. pp. 633-636; 3 R.T:. pp. 1567-1572, 1634.) Assuch, the court did not necessarily err in refusing togive the lesser includedinstruction in count5. (1-C.T. pp. 170-172; 4 R.T. pp. 1808, 1874-1877, 3003-3004.)Thesame cannotbe said of count 2. Unlike the defendant in People v. Carrasco, supra, 163 Cal.App.4" ‘ at 984, here, petitioner did nothit Baker whenhe attempted to handcuff. him, but did-so after Baker slammed himto the ground.(3 R.T. pp. 1215- 1216.) Of course, the context ofpetitioner’s refusalto face the wall is also very important, as petitioner was merely concerned about his legal - documents. (3 R.T. pp. 1208, 1210, 1236, 1238, 1277.) - Thereafter,petitioner was repeatedly struck and eventually pepper | sprayed. (3 R.T. pp. 1216-1217, 1239, 1241, 1243, 1256, 1259, 1272-1276, 1278-1279, 1283-1286,-1289.) Therefore, the jury could have found that _. any resistance he displayed wasin direct response to Baker’s initial useof excessive force. For these reasons, the Court ofAppeal erred in finding that the failure to give the instructionwasnot error. (People v. Breverman,, supra, 19 €al.4" at 177-178; Condev. Henry, supra, 198 F.3d at 739-740.) Therefore, the petition for review should be granted. 20 - CONCLUSION For the foregoing reasons, petitioner submits this Court should review his case. Dated: March 26, 2012 Respectfully submitted, we "Melanie K. Dorian Attorney for Petitioner DEWONE T. SMITH 21 CERTIFICATE OF WORD COUNT People v. Dewone T.Smith No. 2 Crim. B223181 Los Angeles County No. BA337647 Pursuantto rule 8.504(d) of the California Rules of Court, I, Melanie K. Dorian, appointed counsel for Dewone T. Smith, hereby certify that I prepared the foregoing Petition for Review on behalf ofmy client, and that the word count for this brief is 4,236, excluding tables and the Court of Appeal opinion. This brief therefore complies with the rule which limits a computer- generated brief to 8,400 words.I certify that I prepared this documentin Word, andthat this is the word count Word generated for this document. 2 a a men all + oo 4 Melanie K. Dorian fo Attorney for Petitioner < DEWONE T. SMITH EXHIBIT A Filed 2/24/12 : . CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT . DIVISION ONE THE PEOPLE, — B223181 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA337647) V. DEWONE T. SMITH, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Affirmed with directions. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, ChiefAssistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent. 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 ofbattery 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 contendsthe trial court erred by refusing to instruct on misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) as a lesser included offense andthat it abusedits 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 remandfor the trial court to reconsider defendants Romero motion andits exercise of sentencing discretion becausethetrial court abused its discretion by failing to consider several very significant factors: defendant’s mentalillness, the impropriety of defendant’s incarceration in the county jail at the time ofthe commitmentoffenses, the combined effect of defendant’s improper incarceration in county jail and mentalillness, and the relatively minornature ofthe commitment offenses. In addition, the court’s commentsindicate it may have been unawareofthe variety ofways in whichit could exercise its discretion to impose something less than the sentenceit admittedly found “excessive.” BACKGROUND Defendant had several prior convictions, including an April 2000 conviction for involuntary manslaughter. Defendant wasparoled on that case in February 2003, but his parole was revokedafter he was convicted in September 2004 of driving underthe influence in violation ofVehicle 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 countsofbattery by gassing on a correctionalofficer (§ 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 fortrial ofthese charges. On April 30, 2007, defendant pleaded no contest to two violations of section 4501.1, subdivision (a) and the criminal threat charge..On May25, 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 daysof presentencecredit. The court’s minute order stated, ““The defendantis ordered to be transported to state prison forthwith.” Yet for causes notexplained 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 presentcase. The first incident involved in the present case occurred on February 7, 2008, following several days of insults exchanged between defendant anda Hispanic inmate in the same“security level nine” module. (Undesignateddate references are to 2008.): Sergeant Mark Renfrow,who wasin chargeof discipline in the men’s centraljail, believed there would bea raceriot 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 andall inmates dropped to the floor. Renfrow recovered defendant’s shank, which was made ofa 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 needa little help.” Defendant was placed in disciplinary housing for 30 days, which Renfrow felt was an appropriate discipline. Generally, possession of a weaponin 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 uponthis incident. © The next incident occurred on April 21 when defendant and six to eight other inmates were being movedout of a cellblock thathoused potential ““K10” high security inmates and into the general population. The inmates weresupposed 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 themnot 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, Bakermoved toward defendant, placed one hand on — defendant’s back, pulled defendant’sleft 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 behindhis back, but defendant “spun to hisleft,” and Baker “swung around and took [defendant} down.” Bakerlost his footing and fell down:next to defendant. While both were on their knees, defendant punchedBaker 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 monthsafter the incident, after speaking with the prosecutor, Esqueda wrote a supplemental report reflecting that after defendant was handcuffedhe 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 beenlet out ofhis cell to retrieve his breakfast from the dayroom and was refusing to go. backinto 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 deputyvideotaped the events and the video was shownattrial. (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.” Whenthe deputies got near him, he threw the contents ofa 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. Throughouthis time in the clinic, defendantmade statements such as, “I needed that man,” “I love it. I.love it,””- “No pain, no gain. I lovepain. In fact, it didn’t even hurt,” “I’m fine, I’mexcellent. . Yea, I-feel like a giant man. Uh, yea, ya know, some would say that’s a love tap. Yea.. Loveit,” “Don’t trip, I need that ah, that ah, you know, like Batman, he got that energy flow,” “That shit feltgood 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 throughthesolid door ofa disciplinary cell. Asa result, Ben-Sahile suffered an eye infection and missed workfor 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 ofthem were notstrikes within the scope of the “Three Strikes” law. Thetrial court foundthat all four werestrikes. Defendant movedto dismissthestrike findings. The court denied the motion and sentenced defendant to six consecutive third-strike terms of 25 yearstolife, for a total of 150 yearsto life in prison. DISCUSSION 1. Refusal to instruct on section 148as lesser includedoffense -. Section 69, under which defendant was charged‘and convicted, states, “Every person whoattempts, by meansofany threat orviolence, to deter or prevent an executive officer from performing any duty imposed upon such officer bylaw,or who knowingly resists, by the use of force or violence, such officer, in the performanceofhis duty, is punishable by a fine not exceedingten thousand dollars ($10,000), or by imprisonment in the state prison, or in a countyjail 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. Thefirstis attempting by threats or violenceto deteror prevent an officer from performing a duty imposed by law; the secondisresisting by force or violence an officer in the performance of hisor herduty.” ‘Un re Manuel G. (1997)16 Cal.4th 805, 814.) Thefirst form of a violation ofsection 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 thefuture.” (Manuel G., at p. 817.) The second form of violating section 69 “assumesthat the officer is engaged in such duty whenresistanceis offered,” and “the officers must have been acting lawfully when the defendant resisted arrest.” (Manuel G., at p. 816.) Thetrial court considered instructing upon a violation ofsection 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 alesser included offense of section 69 andthe 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 ofhis 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.imprisonmentin acounty jail not to exceed.one year, or by both that fine and imprisonment.” An offense is necessarily included in anotherif 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 offensecannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.) _ With respect to the statutory elementstest, there is a split.of authority as.to whether a violation of section 148, subdivision (a)(1).is necessarily included within a violation of section 69. (People v. Belmares (2003) 106 Cal.App.4th 19, 24 [not included]; Peoplev. Lopez (2005) 129 Cal.App.4th 1508, 1532 (Lopez) [not included]; People v. Lacefield — (2007) 157 Cal.App.4th 249, 259 (Lacefield) [included within actual resisting form of section 69 understatutory elements test].)..We agree with Lopez and. Belmares because an attempt to deter or prevent an officer from.performing adutyat.some timein the future. violates section 69, but not section 148, subdivision (a)(1). Lacefield cited no authority for applying the statutory elementstest to just half of the statute. Looking at thestatute as a whole, itcannot be said that when a person violates section 69, he or she necessarily violates section 148, subdivision (a)(1).. Accordingly, we followBelmares and Lopez. _ Asfor the accusatory pleadingtest, the information alleged count2 as follows: “On or about April 21, 2008, in the County of Los Angeles, the crimeofRESISTING EXECUTIVE OFFICER, in violation ofPENALCODE SECTION 69, a Felony, was committed by.DEWONE T. SMITH,whodid unlawfully attempt by meansofthreats and violence to deter and prevent ROWLAND, ESQUEDA, LIM, BAKER, MORENO, FARINO, who was[sic] then and there an [sic] executive officer [sic], from performing a dutyimposed upon such officer [sic] by law, and did knowinglyresist by the use of force and violence said executive officer [sic] in the performanceofhis/her duty.” The information thus alleged defendant committed both formsofviolating section 69 (Lacefield, supra, 157 Cal.App.4th at p. 255), and thestatutory elements test governs (Lopez, supra, 129 Cal.App.4th at p. 1533). . As defendant correctly notes, during trial the prosecutor electedto proceed on only the second form ofviolating section 69 (actual resisting) as to:count 2, and argued defendant committed the offense by punching Bakerinthe face. At the prosecutor’s request, the trial court instructed the jury that in order to convict defendant of a violation of section 69 in count 2, the prosecutor must prove that “defendant used force or violence to resist an executive officer” when “the officer wasperforming his lawful duty.” But established law requires thatthe determination ofwhetheralesser offense is necessarily included must be based on the statutory elements or accusatory pleading, not on events occurring during the trial. For example, “[t]he evidence adducedattrial is not to be considered in determining whether one offense necessarily isincluded within another.” - (People v. Cheaves (2003) 113 Cal.App.4th 445, 454.) Even if section 148, subdivision (a)(1)were for somereason necessarily included within the violation of section 69 alleged in count 2, instruction would be required only if the trial court found substantial evidence that, if accepted by thetrieroffact, would have absolved thedefendant of guilt ofthe greater offense, but not ofthe lesser. (People v. Blair (2005) 36 Cal.4th 686, 745.) Defendantargues that the jury could have convicted him ofa violation of section 148, subdivision (a)(1) if it concluded that Baker used excessive force against defendant, and defendant was merely responding tothe unlawful use of force when he punched Baker. But an officer must be engaged in the lawful performanceofhis or her duty for conviction under eithersection 148, subdivision (a)(1) or the actual resistance form ofviolating section 69. (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109; Susag v. City ofLake Forest(2002) 94 Cal.App.4th 1401, 1409.) Thus,as the trial court instructed with respect to section 69, if the jury found that Baker were using unreasonable or excessiveforce, it was required to acquit defendant, not convict him ofa different offense that also required the lawful performance of duty by a peace officer. In other words, there was no substantial evidence here that, if accepted by thetrier of fact, would have absolved defendantofguilt of the greater offense (§ 69) but not ofthe lesser.(§ 148, subd. (a)(1)).. Accordingly, the trial court did not err by refusing to instruct on section 148, subdivision (a)(1). 2. Denial ofRomero motion Defendant’s fourstrikes were a 1989 juvenile adjudication ofrobbery, for which he wassent to the California Youth:Authority (CYA), apparently for a “90-[day] diagnostic”’; a. 1995 federal conviction for armed bank robbery, for which he was sentenced to 51 months in prison;.a 2000 involuntary manslaughter conviction, for which he received a four-year prison sentence; and the 2007 criminal threat conviction in case No. MA032128, for which he received an eight-month subordinate term. Citing Romero, supra, 13 Cal.4th 497, defense counsel askedthetrial court to vacatethe strike finding with respect to the juvenile robbery adjudication because it was remote and no one could anticipate in 1989 that it would becomea strike. He argued that the strike finding pertaining to the involuntary manslaughter conviction should be vacated because there was no finding he inflicted great bodily i njury and hésimply swung at a man who fell, hithis head, and died. He further asked the court to vacate the finding based on the federal bank robbery because it wasin 1995 and “just saying bank‘robbery is not good enough for a strike.” And he asked the courtto vacate the strike finding based upon the criminal threat conviction because the eight-month sentence indicatedit was “not that serious or not that violent.ey . 7 . In denying the motion,the trial court stated, “This is something I had frankly looked at from variousangles and various sides as to whether or not given the current case law cited both by the People and by the defense whetheror not this court can‘under its exercise ofits discretion strike some ofthese strikes. And it—I take great pains to. place on the record the fact that I fine-tooth combedthis and, quite frankly, despite the fact that I may bemotivated by some desire todecrease what the court must dointhis case. Lookingat the case law, looking at his record, looking atthe probation department report, I genuinely do believe that it would be an abuseofdiscretion subject to reversal should I strike the strikes. So I’m going to decline the request for thestrikes to be stricken.” With respect to sentencing, defense counsel asked the court to consider defendant’s mentalillness as a mitigating factor and “pick[] the low term.” He also arguedthat the current offenses “stem[med] from mental illness, isolation, many, many ~~ monthsin county jail. I think he’s been there two and’a halfyears. Andall ofthese taken together just took him to the edge and caused his conduct.” In response,the prosecutor noted that with the strike findings, there was no triadof terms: “It’s all 25 to life.” | Defense counsel then informedthe court that defendanthad just handed him a documentreflecting his treatment by the Department of Mental Health, “Atascadero State Prison [sic],” pursuant to section’2962! as a prisoner who “hasa severe mental disorder 1 Section 2962 provides, in pertinentpart, as follows: : “As a condition ofparole, a prisoner who meets the following criteria shall be required to be treated by the State Department of Mental Health, and theState Department of Mental Healthshall provide the necessarytreatment: . “(a)(1) The prisonerhas a severe mental disorder that is not in remission or cannot be kept in remission without treatment. “(2) ‘The term ‘severe mental disorder’ meansan illness or disease orcondition that substantially impairs the person’s thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidenceof an acute brain syndrome for which prompt remission, .in the absence oftreatment, is unlikely. The term ‘severe mental disorder’ as used in this section does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse’of intoxicating substances. : “(3) The term ‘remission’ meansa finding that the overt signs and symptoms ofthe severe mental disorder are controlled either by psychotropic medication or psychosocial support. A person ‘cannot be kept in remission without treatment’ if during the year prior to the question being before the Board ofPrison Termsora trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another so as to causethetarget ofthe threat to reasonably fear for his or her safety or the safety of his or her immediate family, or he or she hasintentionally caused property damage, or he or she has not voluntarily followed the treatment plan. In determining if a person has voluntarily 10 that is not in remission or cannot be kept in remission without treatment.” The court noted that defendant had been found to be competentat the start ofproceedingsin this case and the court had not been told of any “current mental condition that would have given me pause about whether or not he wascompetent to standtrial.” Counsel agreed defendant was competent, but said he was trying to “inform the court maybe the reason behind his conduct.” Asit imposed the sentence of 150 yearsto life, the court stated,“Let me just say that I do this with no pleasure. Quite frankly, and I’m admitting my large view here that this appears to be excessive. I’m not underplaying the suffering that would have been sustained by the deputies, I’m not underplaying the importance of maintaining a nonviolent environmentin lockup, butI take no pleasure in enforcing this sentence. I do followed the treatmentplan, the standard shall be whether the person has acted as a reasonable person would in following the treatmentplan. “(b) The severe mental disorder was one ofthe causesofor was an aggravating factor in the commission of a crime for which the prisoner was sentencedto prison. “(c) The prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner’s parole or release: “(d)(1) Prior to release on parole, theperson in chargeoftreating the prisoner and a practicing psychiatrist or psychologist from the State Department of Mental Health have evaluated the prisonerat afacility ofthe Department of Corrections and Rehabilitation, and a chief psychiatrist of the Department of Corrections and Rehabilitation has certified to the Board of Parole Hearings that the prisoner has a severe mental disorder, that the disorderis not in remission, or cannot be kept in remission without treatment, that the severe mental disorder was one of the causes or was an aggravating factorin the prisoner’s criminal behavior, that the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day, and that by reason ofhis or her severe mental disorderthe prisoner represents a substantial danger ofphysical harm to others. For prisoners being treated by the State Department of Mental Health pursuant to Section 2684 [state prison inmates transferred to state hospital], the certification shall be by a chiefpsychiatrist of the Department of Corrections and Rehabilitation, and the evaluation shall be doneat a state hospital by the person atthe state hospital in charge oftreating the prisoner and a practicing psychiatrist or psychologist from the Department of Corrections and Rehabilitation.” 1] this because I’m properly looking at my authority and what my—whatI’m required to do under appellate authority.” Defendant contends that the trial court abused its discretion by denying his Romero motion: He arguesthat his 1989 juvenile adjudication was remote, and nothing indicated the offenseinvolved violence. But he primarily argues that the record demonstrates that he suffers from mental illness, the commitment offenses resulted from his poor reaction to years ofisolation in the county jail when he should havebeen receiving treatment for his mental illness, and “[j]Justice would not be served by incarcerating a person who has been declared a mentally disorder[ed] offender for offenses that are mostly wobblers and for a period of 150 yearsto life... .” A trial court has discretion under the Three Strikes law to dismiss or vacate prior conviction allegations or findings in the furtherance ofjustice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this power,the trial court must consider the particulars of the defendant’s background, character, and prospects; his constitutional rights; the nature and circumstances ofthe current and prior offenses; and the interests of society to decide whether the defendant may be deemedto be outside the anti-recidivist “spirit” of the Three Strikes law, in whole or in part. (Romero, at pp. 530— 531; People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) The sentence a defendant receiveson one ofthe current counts is also a relevant consideration with respect to the remaining counts. (People v. Garcia (1999) 20 Cal.4th 490, 500 (Garcia).) Thus, a trial court may vacate a strike finding with respect to some ofthe current offenses, whileleaving the finding in effect withrespectto others. (d. at pp. 503-504.) Thetrial court may also exercise its discretion pursuant to section 17, subdivision (b), to treat asa misdemeanor a “wobbler” offense charged as a felony. (Peoplev. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 972-973, 979 (Alvarez).) Relevant factors include the nature and circumstancesofthe offense; the defendant’ s appreciation of and attitude towardthe offense; his character, as evidenced by his behavior and demeanorat thetrial; and the defendant’s criminal history. (Ud. at pp. 978-979.) All of 12 defendant’s current commitment offenses except custodial possession of a weapon were wobblers. Thetrial court’s decision is reviewed deferentially. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) The “trial court does not abuseits discretion unless its decisionis so irrational or arbitrary that no reasonable person could agree with it.” (Jd. at p. 377.) The Three Strikes law “not only establishes a sentencing norm,it carefully circumscribes the trial court’s power to depart from-this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conformsto these sentencing normsis both rational and proper. [Wl In light of this presumption, trial court will only abuseits discretion in failing to strike a prior felony conviction allegation in limited circumstances,” such as where the court was unaware ofits discretion or considered impermissible factors. (Jd. at p. 378.) “Moreover, ‘the sentencing norms[established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd”result’ under the specific facts of a particular case.” ([bid.) “Where the record is silent . . . or ‘[w]here the record demonstrates that the trial court balanced the relevant facts andreached an impartial decision in conformity with the spirit of the law, we shall affirm thetrial court’s ruling, even ifwe might have ruleddifferently in the first instance’ [citation]. Because the circumstances must be ‘extraordinary . . . bywhich a career criminal can be deemed to fall outside the spirit of the very scheme within whichhe squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation ofwhich the law was meantto attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit ofthe three strikes scheme must be even more extraordinary.” (/bid.) Based upon our review of the record, wefind 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 thetime of the commitment offenses, the combined effect of defendant’s improper incarceration in county jail and 13 mental illness, and the relatively minor nature ofthe commitment offenses. In addition, the court’s comments indicate it may have been unawareofthe variety ofways in which it could exercise its discretion to impose something less than the sentence it admittedly found “excessive.” a. Mentalillness Asfar as:the record reveals, the trial court did not consider defendant’s mental illness as a factor in ruling upon defendant’sRomero motion. Although defensecounsel mentioned defendant’s mentalillness in passing in his written motion, and in his sentencing memorandum;he did not argueitat the hearing on the Romero motion as a reason the court should vacate the strike findings, and the court did not refer to it. After the court denied the motion, counsel argued that because of defendant’s mental illness the court should select the low term ‘on the current offenses. Of course, after the denial of the Romero motion, the onlyterm available was 25years to life, unless the courtdecidedto « treat the five counts that were wobblers as misdemeanors. . The record provides ample evidence of defendant’s mentalillness. In sentencing defendant in 1995 for federal bank robbery, United States District Court Judge Gary Taylor ordered, asa term ofdefendant’s ultimate supervised release following incarceration, “The defendant shall participate in a psychological/psychiatric counseling or treatment. program, as approved anddirected by the Probation Officer.”“When Los Angeles Superior Court Judge James Brandlinsentenced defendant to prison for involuntary manslaughter in. April of 2000, he ordered that “defendant receive psychiatric counseling while in prison.” The incident giving rise to the criminal threats conviction in case No. MA032128 occurred when “defendant wasparticipating in the mental health services delivery system at the enhanced outpatient program level ofcare” in a state prison. And the Department of Corrections and Rehabilitation’s chronological history for defendant includes the following entry dated October 19, 2006: “Prisoner meets criteria for treatment by DMH[Department of Mental Health] as a condition of parole, per 2962 P.C. Treatment by DMH is ordered as a special condition of parole.” Thatis to say, 14 defendant was foundto have a “severe mental disorder requiring treatment.” (See ante, fn. 1.) In the course of the proceedings in this. case, counsel twice declared a doubt as to defendant’s competency. Psychiatrist Gordon Plotkin prepared two reports. In the first, he reached noopinion dueto insufficient data and defendant’s failure to cooperate. In the second, he opined that defendant was competent. He believed that defendant was “embellishing symptoms,” but might have bipolar disorder. In his second report, Plotkin reviewed defendant’s medical records from the Department of Corrections and Rehabilitation and reported,“The psychiatric records date back to 2000, when he wasfirst started on Prozac(the antidepressant medication), Trazodone(a sedatingantihistamine-like antidepressant whichis frequently abused in corrections), and Benadryl (which is also sedating and frequently abused). He wastried on the moodstabilizer, Depakote, and an antipsychotic medication and mood. stabilizer, Risperdal. . . . [I]t was noted that he had a long history of anger and impulse control problems, mood swings, poorsleep, history of auditory hallucinations and paranoia, and had madea suicidal gesture in 1-02 while in corrections. They noted cognitive difficulties, grandioseand narcissistic features in his personality. He had several CDC 115’s [disciplinary actions] in a three week period. He had beentreated in mental health reported in CYA, CDC [California Department of Corrections], and in juvenile hall. Other than the CDC treatment, this has not been validated. Reportedly, he wasshot in the head twice and a bulletis still there. His thinking was concrete and he has routinely been given the diagnosis of Schizoaffective Disorder and Antisocial Personality Disorder. Whenseen in prison, he sometimes will have pressured speech, report auditory hallucinations or paranoia which are almost always reported as minor. ... He reported auditory hallucinations since age 19, suicide attempts starting at age 16 (taking asthma pills, and attempted hanging in 2002 while he wasin corrections). At best, these appear to be just suicidal gestures rather than true suicide attempts. He reported paranoia of the ‘justice system,’ something which is repeated frequently in the chart. He has been noted 15 as ‘hypomanic’ during observationas noted in the corrections chart. He has threatened to hang himself if he was taken to Ad Seg (the administrative segregation unit), and has at other times reported that he would harm himself in order to manipulate for placements.” Dr. Plotkin noted that sometimes defendant demanded additional medication and other times he refused to take his medication. Plotkin further reported that from mid- 2000 through September of 2002, defendant “hadreports ofauditory hallucinationsand wastried on numerous medications.” “In early 2005 through 12-05, he had gassing attemptson staff, frequently was pepper sprayed, angry, hostile, was noted as hitting his hand on a door causing superficial wounds, one time punched the door and brokehis finger (stating that inmates were tryingto hurt him)and hestated at one point, “I’m going to cut myself if you send me back.’ ... He said he wanted a cutto become infected. He threatened staff and made suicide threats during manipulations. . .. He frequently complained after hewas pepper sprayed. He was noted to complain of suicidal ideation after he had reportedlygassedstaff, along with reported voices and poorsleep. Throughout 2005, he was tried on numerous medications, many ofwhich are sedating, some moodstabilizing antipsychotics, but eventually on sedating antipsychotics and antihistamines, Prozac, anda moodstabilizing medication, Depakote. He threatened to hang himself if he was placed in Administrative Segregation in 2000. He complained frequently he had paranoiaofthe ‘justice system.” [{]] After the ‘gassing’ episodes from 12-05 through 10-06, he was again treated with the sedating antihistamine antidepressant, Trazodone, along with Prozac, Haldol, and sometimes Depakote, and other times given Cogentin for the side effects of the Haldol.” In addition, defendant’s conduct and statements in the course ofthe commitment offenses, the offenses in case No. MA032128,and the disciplinary incidents to which Plotkin réferred tend to reflect defendant’s mentalillness. For example, although Plotkin reported defendant “frequently complained after he was pepper sprayed” and wanted to avoid administrative segregation, defendant nonetheless continued to engage in behavior that resulted in him being pepper sprayed “frequently” and placed in administrative 16 segregation. The recording of the September 11 incident, which gaveriseto three of the current commitment offenses, reveals numerousbizarre statements by defendantthat may. beviewedas reflecting his mental illness.For example, his repeated entreaties to the deputies to “shoot” at him, and his statementsin the clinic thathe “needed,” loved, and was energized by, the Taser shocks, whichhe said were “fun” and “felt good.” A mental condition thatsignificantly reduces culpability for a crime is a mitigating factor (Cal.Rules of Court, rule 4.423(b)), and defendant’s apparent mental illness was clearly a material factor pertaining to defendant’s background, the nature and ... circumstances of the current and prior offenses, and society’s interests that the trial court ' should have considered in deciding whether to vacate someor.all ofthe strike findings or treat the wobblers as misdemeanors, or both. Based upon its remarks at the sentencing hearing, the trial court seemingly failed to understand that it could and should consider defendant’s mental iliness for these purposes, even though defendant was competent to stand trial. As noted.in the April 2011 final report of the Task Force for Criminal Justice Collaboration onMental Health Issues established by former Chief Justice Ronald M. . George, “Functional impairments can makeit difficult for inmates with mental illness to abideby.the myriad jail and prison rules. Not surprisingly, these individuals are often at higherrisk for beingcharged with facility rule violations and prison infractions... . [P]risoners with mental illness are morelikely to be placed in administrative segregation | than the general inmate population. Isolation and. segregation can exacerbate symptoms. of mental illness, however.” (Jud. Council. of Cal., Admin. Off. of Cts., Task Force for Criminal Justice Collaboration on Mental Health Issues: Final Rep. (Apr. 2011)-p. 31,fn. omitted.) Upon remand,the trial court shouldconsider whether lifetime incarceration for. an apparently mentally ill offender whohasdifficulty abiding by jail rules best serves the interests of society and is otherwise appropriate under Romero, Williams, and Carmony. 17 b.: Impropriety of incarceration in county jail and effect upon defendant’s mental illness The most confounding aspect of this case was why,atthe time of the commitment offenses, defendant wasnot in prison, whére he was supposed to be serving his term in case No. MA032128 and could have been receiving treatmentforhis mental illness, but was instead incarcerated in the Los Angeles County jail. Justbefore trial began, the court asked, ““What was he in custody for?” The prosecutor replied, “ThatI’m not sure of. Counsel and I have discussed it. It is not clear to me.” The court asked, “Is that goingto: be brought up? ‘Doesit matter?” The prosecutor said he did not expectto bring it up, and defense counselsaid, “No, it is not an issue.”” Defense counsel then explained that defendant had been sentencedto prison on a different gassing case, but “came here” instead of going to prison. ‘The court did not allow defendant to explain the situation when he attempted to do so, but after defendant conferred with counsel, counseltold the courtthat “at one point [defendant] was declared incompetent” and “then he wastogo to Atascadero State Prison [sic] for further evaluation on a 1368, and he never got there: because they didii’t have a bedor didn’t have room.” Defendantattempted to correct these statements, but the court'did not permit him to do so. Defense counsel continued, — “Heis trying to explain to you, heshouldn’t have been here. He should have went[sic] to Atascadero or Patton, but he didn’t go, although he wasordered to go.” The court stated, “That is not an issue.” Counsel then agreed, “Not an issue here in this case.” Defendant protested: “I’ve been having this case go on for over a year now. I supposed to have been somewhereelse: I’m stuck here: They held me in county jail, set me up with these cases; knowing thatI take medication andall that. I have to take shots. [{] Andheis talking about, oh, that don’t matter. That does matter, man, because I’m supposed tohave been somewhereelse. I’m not being heard appropriately.... [f] ... [Sj] All in county jail, it’s all messed up there. They don’t give me no treatmentor nothing.” Defendant attempted to raise the impropriety of his incarceration in the county jail again duringtrial, to no avail. He also argued the point before trial during a hearing on 18 his motion to replace his appointed attorney. and after the court imposed the sentence of 150 yearsto life. Sections 1215 and 1216 imposed a duty upon the Los Angeles County Sheriff to “take and deliver the defendantto the wardenofthestate prison” “forthwith.” In addition, on June 20, 2007,the trial court in case No. MA032128 ordered the sheriff to transport defendant to prison “forthwith.” With no explanation in the record as to why, the sheriff did not transport defendant to prison to serve his sentence in case No. | MA032128. Defendant inappropriately remained in the county jail, and, asfar as the record reveals, he was not housedin the jail’s psychiatric unit. Because defendant was never transferred to. prison, he was improperly incarcerated in jail and deprived ofthe mental health treatment he couldhave received in state prison through the Department of Corrections and Rehabilitation Mental Health Services Delivery System, or through a transfer by the Department of Corrections and Rehabilitation to a state mental facility for inpatient care. Simply put, defendant should not have been incounty.jail to commit the offenses giving rise to the 150-years-to-life term. He should instead have beenin state prison, receiving appropriate treatment for his mental illness. The sheriffs not transportingdefendantto prison “forthwith,” as required by the trial court’s order and sections 1215 and 1216, created unusual and inappropriate conditions—for which defendant was blameless—thatplaced thesheriff’s deputies in the difficult position of dealing with defendant and gaverise to the commission ofthe charged offenses. Asfar as the record reveals, when the court ruled upon defendant’s Romero motion and exercised its sentencing discretion, it did not consider the crucial factor ofthe impropriety of defendant’s custody in the jail at the time of the commitment offenses and the effect this had upon defendant’s mental illness. Indeed, it appears the court accepted defense counsel’s repeated assurancesthat the site of defendant’s incarceration was “not. an issue.” Whileit is, to at least some extent, understandable that the trial court disregarded an issue that defense counsel repeatedly disclaimed, webelievethetrial court’s failure to consider the inappropriateness of defendant’s incarceration in the county 19 jail at the time ofthe commitment offenses—andthe effect thishad upon his mental illness and behavior—was nonetheless an abuse of discretion. (We further note that were weto considerthe issue forfeited by trial counsel, the sammepoint would needto be resolved in the context of a habéascorpuspetition alleging ineffective assistanceoftrial _ counsel. Directing the trial court upon remandto consider the impropriety of defendant’s jail incarceration, along with the other factorsdiscussed herein, thuspromotes the © efficient use ofjudicial resources.) c. Relatively minor nature of commitment offenses Another factor'the court could have consideredin relation to its discretion to © ameliorate its “excessive” sentence is that the current offenses were actually relatively minor in nature. Sergeant Renfrow, who was incharge of inmate discipline for the entire men’s centraljail, testified that “more often than not”a jail inmate’s violation of rules, including fighting with a deputy, results in only internal administrative discipline, not criminal charges. Thus;‘each ofthese offensesmight have been handled solely through internaljail discipline and never havebeen the subject of a criminal prosecution, let alone a Three Strikes case. Except for the single charge of custodial possession of a weapon, each offense ofwhich defendant was convicted was a wobbler. The court could have exercised its discretion to sentencefive ofthe six counts as misdemeanors and impose a felony term—-whether or not under the Three Strikes Law-—only for the weapon conviction. (Alvarez, supra, 14 Cal.4th at pp.972-973, 979.) . Wedo notintend to diminishthe indisputably obnoxious natureof defendant’s conduct in gassing the deputies. But, according to Deputy Tadrous, gassing happens “regularly” in thejail system and, as the record reveals, the only person (other than possibly defendant) who wasinjured in the course of any ofthe commitmentoffenseswas Deputy Ben-Sahile, who contractedan eye infection. In the grand schemeofthings, defendant’ s commitment offenses were relatively minor. Although that is not a bar to | imposition of a third-strike sentence, it is a factor the trial courtis required to considerin deciding how to exercise its sentencing discretion. 20 In addition, the nature and circumstances of the commitment offenses are inextricably linked withdefendant’s mental illness and the impropriety of his incarceration in the county jail. d. Conclusion Thetrial court expressly recognized that the 150-years-to-life sentence it imposed upon defendant was “excessive.”. Based upon our review ofthe record, we conclude that the trial court abusedits discretion by failing to consider several very significantfactors: defendant’s mentalillness, 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 mentalillness, and the relatively minor nature of the commitment offenses. In addition, the court’s comments indicate it may have been unaware of the variety ofways in which it could exercise its discretion to impose something less than the sentence it admittedly found “excessive.” We concludethat this case presents the “even more extraordinary”“circumstances where no reasonable people could disagree that” defendant falls fully or partially outside the spirit ofthe Three Strikes° schemeandthat application of the Three Strikes law to its maximum extent to impose a 150-years-to-life sentence produces an “‘“arbitrary, capricious or patently absurd”result? underthe specific facts of [this] case.” (Carmony, supra, 33 Cal.4th at p. 378.) Accordingly, we remandfor the trial court to reconsider defendant’s motion and the court’s sentencing decision in light of the factors and sentencing options discussed herein. (Romero, supra, 13 Cal.4th at pp. 529-530; Garcia, supra, 20 Cal.4th at pp. 503—504; Alvarez, supra, 14 Cal.4th at pp. 972-973, 979.) DISPOSITION The judgmentis affirmed. The sentence is vacated and the cause remandedto the trial court for reconsideration of defendant’s motion to vacate the strike findings under Penal Codesection 1385, People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and People v. Garcia (1999) 20 Cal.4th 490, and consideration of treatment of wobbler offenses as misdemeanors under Penal Code section 17, subdivision (b) and People v. - 21 Superior Court (Alvarez) (1997) 14 Cal.4th 968. In exercising its sentencing discretion, the trial court shall consider defendant’s mentalillness, the impropriety of defendant’s incarceration in the county jail at the time ofthe commitmentoffenses, the combined ° effect of defendant’s improper incarceration in county jail and mentalillness, and the relatively minor nature ofthe commitment offenses. In addition, the court should considerthevariety ofways in which it can exercise its discretion to impose something less than. the sentence it admittedly found“excessive.” CERTIFIED FOR PUBLICATION. MALLANO,P. J. Weconcur: --, ‘CHANEY,J. ~-JOHNSON,J- 22 PROOF OF SERVICE Re: People v. Dewone T. Smith I, Melanie K. Dorian, declare that I am over 18 years old; my business address is P.O. Box 5006, Glendale, California 91221-5006. On March 26, 2012, I served a true copy ofAPPELLANT’S PETITION FOR REVIEW,byfirst class mail, on the following parties: California Court ofAppeal DewoneT. Smith AC6787 Second District, Division One RJ Donovan Correctional Facility 300 S. Spring Street, Room 2217 P.O. Box 799003 Los Angeles, California 90013 San Diego, California 92179-9003 Ryan M. Smith Earl Evans, Esq. Office ofthe Attorney General P.O. Box 4638 300 S. Spring Street, Room 1702 La Puente, California 91747 Los Angeles, California 90013 Craig Kleffman California Appellate Project District Attorney’s Office 520 South Grand Ave, 4" Floor 210 West Temple Street, 18" Floor Los Angeles, California 90071 Los Angeles, California 90012 : Criminal Justice Center 210 West Temple Street, Dept 125 Los Angeles, California 90012 FOR DELIVERYTO: Hon.Jose I. Sandoval, Judge I declare under penalty ofperjury that the foregoingis true and correct. a r o, _--~” MELANIE K. DORIAN Executed on March 26, 2012, at Glendale, California
