People v. Marconnet CA3

Filed 6/28/23 P. v. Marconnet CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095774
Plaintiff and Respondent, (Super. Ct. No. 21FE008909)
v.
VINCENT MARCONNET,
Defendant and Appellant.
SUMMARY OF THE APPEAL
Defendant Vincent Marconnet appeals from the judgment imposed following his
conviction for robbery (Pen. Code, § 211 – statutory section citations that follow are
found in the Penal Code unless otherwise stated) and a true finding that he personally
used a deadly weapon, a knife (§ 12022, subd. (b)(1)). On appeal, defendant contends:
(1) the trial court abused its discretion under section 1385 by failing to afford great
weight to the age of his prior conviction in determining whether to strike the five-year
prior serious felony enhancement; (2) the personal use enhancement must be reversed
because the jury was prejudicially instructed with an incorrect legal theory; and (3) the
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trial court abused its discretion in imposing the middle term. The People claim the failure
to double defendant’s sentence after denying the motion to strike his prior strike
conviction under People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero)
resulted in an unauthorized sentence. The People agree the trial court erred in instructing
the jury as to the personal use enhancement, but contend the error was harmless. We
conclude the record reflects the trial court did not understand the scope of its discretion in
sentencing. We further conclude the instructional error on the personal use enhancement
was prejudicial. Accordingly, we will reverse the personal use enhancement, vacate the
sentence, and remand for further proceedings.
FACTS AND HISTORY OF THE PROCEEDINGS
S.S. was living at an extended stay hotel when he met Melissa M. Melissa stayed
with S.S. for a couple of weeks, until he caught her stealing quarters from him and kicked
her out. She left, taking all of her belongings. He did not hear from Melissa again,
although he saw her around the hotel in a white sedan.
S.S. had multiple computers, a gaming console, clothes, and marijuana in the hotel
room. S.S. testified he had obtained the electronics when he got “$16,000” handed to
him from the Employment Development Department (EDD) due to the pandemic. He
also testified he owned a landscaping business and kept the equipment at his mother’s
home.
On March 1, 2021, S.S. had been up for three days, using methamphetamine. He
also had been smoking marijuana daily. At 1:00 a.m., he heard a knock at the door.
Without looking through the peephole or the window just to the left of the door, he
opened the door. Defendant and another man were standing at the door, claiming to be
hotel management. S.S., familiar with hotel management, knew the men were not hotel
management. Defendant asked S.S. if his name was “[S.S.],” a “red flag” went off in
S.S.’s head, and he immediately tried to shut the door. Defendant put his arm between
the door jamb and door to prevent S.S. from shutting the door. S.S. tried to slam the door
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shut, using all his body weight, trying to break defendant’s arm. He was frightened.
Defendant told S.S. he was a friend of Shiloh’s, a person S.S. knew from the hotel.
When he heard Shiloh’s name, S.S. opened the door.
Once S.S. opened the door, he saw defendant pull out a knife and a taser. At trial,
S.S. described the knife as a hunting knife, specifically 16 to 18 inches from handle to tip,
with approximately a 12-inch blade. One side of the blade was smooth and the other was
serrated.
After coming approximately one foot inside the room, S.S. testified defendant
swung the knife at him two or three times, moving and leaning toward him. S.S. was
able to avoid being hit by jumping back two to three feet. Defendant then identified
himself as “Skinner” and said he would do anything for his girlfriend, “Melissa.” While
defendant was swinging the knife at him, the taller man was taking items such as the Pi, a
laptop, and some cords. Defendant then grabbed S.S.’s laptop and PlayStation.
Defendant was holding the knife and the laptop in the same hand. Seeing the laptop was
password protected, they demanded the password and threatened to torture S.S. with the
taser. S.S. just chuckled at them. He did not give them the password. Defendant told
S.S. not to move, took the laptop and the PlayStation, and walked out of the room with
them in his hands. The men left behind a desktop computer and a virtual reality helmet
for the PlayStation. S.S. told law enforcement the men had also taken one and a half
pounds of marijuana.
A hotel security guard saw two men smoking near S.S.’s room on the third floor; a
tall man and a man about 5 feet 6 inches. A short while later, he was asked to go to the
third floor to check out a noise and the two men passed him on the stairs, ran to the
parking lot, and threw themselves into a white car driven by a woman.
The entire incident lasted approximately two to three minutes. S.S. called the
front office and the office called law enforcement. S.S. denied speaking with law
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enforcement on the phone at any point. When a recording of the call to law enforcement
was played, S.S. acknowledged speaking with the police department.
Sacramento County Deputy Sherriff John Higley responded to the scene and took
S.S.’s statement. S.S. was upset, animated and very “amped up”; it took some time for
him to calm down enough to gather information for the report. His demeanor was also
consistent with someone under the influence of methamphetamine.
S.S. told Higley that one of the robbers had referred to himself as “Skinner” and
that he knew Melissa had dated someone with that name. Based on that information,
Higley found defendant. He created a photographic lineup and S.S. identified defendant
from that lineup.
Higley described the hotel room as a small room with one bed. It appeared the
room had been ransacked. Given the size of the room, Higley opined it would be difficult
for a person to avoid being struck by someone trying to hit them.
When S.S. spoke with Higley, S.S. did not describe the knife as a hunting knife.
S.S. told Higley defendant had not made any motion toward him with the knife or taser.
S.S. never mentioned defendant tried to punch him with the taser, swung the knife at him,
or that he jumped back two to three feet to avoid being hit. S.S. reported that the taller
suspect was the one who took the laptops and defendant did not take anything. S.S. did
not tell Higley that defendant put his arm through the door and S.S. tried to slam the door
shut on defendant’s arm. S.S. did not mention any physical injuries or complain of any
pain. S.S. told Higley defendant took approximately one-half pound of marijuana from
the room, and Higley agreed that was a lot of marijuana for personal use. Although S.S.
made some corrections to the written summary of his statement to Higley, he did not
correct the portions about defendant trying to hit him with the taser and swinging the
knife at him or as to which man took the property from the room.
To Higley’s knowledge, the taser and knife “had [n]ever been seized.”
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S.S. had prior felony convictions for manufacturing a controlled substance, felony
child abuse, and felony unlawful starting a fire. S.S.’s brother, Don, testified that in his
opinion, S.S. is not truthful or honest; he is a “scam artist” who regularly lies. S.S. had
previously borrowed money from Don claiming it was for his child, but instead spent the
money on drugs. S.S. applied for unemployment benefits in Oregon, despite having
never lived there. He also falsely claimed his EDD card had been stolen, in an attempt to
be reimbursed for money he had already spent. Don also testified S.S. did not have a
landscaping business or keep landscaping equipment at their mother’s home.
Defendant was charged with robbery (§ 211) and a personal use of a deadly
weapon, a knife, enhancement allegation (§ 12022, subd. (b)(1)). It was further alleged
that defendant sustained a prior serious felony conviction (§ 667, subd. (a) – “nickel
prior”) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). The same prior
conviction served as the basis for each of these allegations. A jury found defendant
guilty of robbery and found true the personal use of a deadly weapon allegation. In
bifurcated proceedings, the trial court found the prior conviction allegations true.
The trial court sentenced defendant to the midterm of three years, plus five years
for the nickel prior enhancement. The trial court struck the punishment for the prior
serious felony conviction and the personal use of a knife enhancement. The trial court
awarded defendant 301 days of presentence custody credit and imposed various fines and
fees.
DISCUSSION
I
Sentencing
The parties raise several claims of sentencing error. Defendant argues the trial
court erred in not affording great weight to the age of his prior strike conviction under
section 1385, subdivision (c). Defendant also contends the trial court abused its
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discretion in refusing to consider mitigating circumstances as to both his motion to strike
and the imposition of the middle term. The People argue the trial court imposed an
unauthorized sentence when, after determining defendant did not fall outside the Three
Strikes law, it did not impose the Three Strikes sentence.
We note neither party objected to the sentence imposed or argued in the trial court
that it erred in imposing its sentence. Nor did the People appeal on the basis of an
unauthorized sentence. Generally, these failures would forfeit the claims on appeal.
(People v. Scott (1994) 9 Cal.4th 331, 356; People v. Burke (1956) 47 Cal.2d 45, 54,
disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647.) The
record of sentencing reflects several sentencing errors which show the court
misunderstood the scope of its sentencing discretion. These errors potentially impacted
both parties and these issues were raised in the parties’ briefing and arguments before
sentencing. Accordingly, we will exercise our discretion to address the merits of each of
the claimed sentencing errors.
A. Background
Before sentencing, defendant filed a statement in mitigation, a motion to strike the
prior conviction under section 1385, and points and authorities regarding the amendments
to sections 1170 and 1385. Defendant’s arguments set forth the recent amendments to
section 1385, including additional factors to consider in dismissing an enhancement
under subdivision (c), and changes to section 1170, which limit the trial court’s discretion
to impose the upper term (§ 1170, subds. (b)(1), (2)) and mandate imposition of the lower
term in certain circumstances (§ 1170, subd. (b)(6)).
Defendant argued the trial court should dismiss his prior strike in furtherance of
justice given his prior strike conviction was over 30 years old, was committed when he
was only 18 years old, and he had a “relatively nonviolent” criminal history. Under
section 1385, subdivision (c), defendant argued his prior conviction should be dismissed
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as it was more than five years old. Defendant also argued under section 1385,
subdivision (c), that the court was required to dismiss all but one of the enhancements.
In addition, defendant raised mitigating factors in his statement in mitigation. He
asserted he had a turbulent childhood which included: being physically abused by two of
his stepfathers; sexually abused by one stepfather; leaving home at 13 years old due to
the sexual abuse; and living with prostitutes until he was 16 or 17 years old. He also
began using drugs at eight years old. The drugs were given to him by his older brother
and foster children living in his home.
The People submitted on the aggravating factors. The People argued defendant’s
long and significant criminal history, combined with the seriousness of the current
offense brought him within the spirit of the Three Strikes law. The People also argued
the prior strike conviction was not an enhancement, rather as part of the Three Strikes law
it was part of an alternative sentencing scheme, therefore, it was not included within
section 1385, subdivision (c).
With respect to the appropriate term, the court said, since the People had
submitted on the issue of aggravating factors, it was limited to imposing either the lower
or middle term. The court went on to state since there was no evidence supporting
mitigating factors beyond the statements by defense counsel in his statement in
mitigation, it would impose the middle term.
As to striking the prior strike conviction, the court observed the 52-year-old
defendant had been sentenced to, although not served, 22 years in prison, and been
granted, although not served, 11 years of probation. The court noted defendant’s criminal
history was not particularly violent; the violent offenses being: the 30-year-old strike
when defendant was 18 years old; a “minor scuffle” approximately 25 years before; and
the current offense. But the court acknowledged defendant had a history of “lots of
recidivism.” The court concluded it could not find defendant fell outside the Three
Strikes law, and stated it was denying the Romero motion.
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But, the court continued, that was not the end of the inquiry, as there was a new
law “where it’s even more difficult to evaluate the new law and the requirements by the
legislature that there are certain things I shall do and certain things that I must consider
and afford great weight to the evidence offered.” The court concluded, “it’s really a clash
between enhancements to a determinate sentencing scheme and the three strikes law.”
“So after considering what is in the furtherance of justice in this case, the Court is not
imposing any penalty for the enhancement that the jury found of [defendant] personally
using a deadly or dangerous weapon as the Court does find that that would be imposing
multiple enhancements. [¶] The question remains on whether the Court can both impose
a five-year nickel prior for the prior strike in 1988, that prior conviction, and double what
the court is now determining is the most appropriate in this case of the triad, the midterm.
[¶] There is no case law to answer this question on whether applying three strikes is
applying a sentencing enhancement the same as a nickel prior is also applying a
sentencing enhancement. [¶] I think there is [a] policy reasons [sic] to apply the three
strikes law and the nickel prior, but the Court is going to decline to do so. [¶] But I am
going to choose the middle term and add five years for the nickel prior for a sentence of
eight years in state prison, recognizing that [defendant] could have had It doubled under
the three strikes law. [¶] I’m going to exercise my discretion to weigh and evaluate the
appropriate sentence in this case and eight years does seem appropriate for a violent
crime such as this in light of all of the circumstances.”
B. Analysis
The parties “ ‘are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, . . . the
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appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) “[A]
discretionary sentencing decision rendered by a judge who did not understand what [they
were] doing would not be sustainable as a proper exercise of discretion.” (In re Large
(2007) 41 Cal.4th 538, 550.)
C. Section 1170
Effective January 1, 2022, Senate Bill No. 567 amended section 1170. Section
1170, subdivision (b)(6) makes the low term the presumptive sentence under a variety of
circumstances if those circumstances contributed to the commission of the offense unless
the court finds that aggravating circumstances outweigh the mitigating circumstances and
imposition of the lower term would be contrary to the interests of justice. (§ 1170 subd.
(b)(6)). These “low-term” circumstances include whether the person has experienced
psychological, physical, or childhood trauma, including, but not limited to, abuse,
neglect, exploitation, or sexual violence. (§ 1170, subd. (b)(6)(A).)
A statement in mitigation is a proper vehicle to present additional facts to the
court. (§ 1170, subd. (b)(4); People v. Slater (1989) 215 Cal.App.3d 872, 875.) A
defendant may submit a statement in mitigation to present additional facts or dispute facts
in a probation officer’s report. The court may consider the statements in mitigation
submitted by the defendant, as well as any further evidence introduced at the sentencing
hearing. (§ 1170, subd. (b)(4); Cal. Rules of Court, rule 4.420.)
Because of COVID-19, the probation officer did not interview defendant and
obtain information as to his background or social history. (Cal. Rules of Court, rule
4.411.5(a)(4), (a)(6) [probation report must include “[a]ny statement made by the
defendant to the probation officer, or a summary thereof, including the defendant’s
account of the circumstances of the crime” and “any relevant facts concerning the
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defendant’s social history[,]” including “[f]actors listed in section 1170(b)(6)”].)
Defendant’s statement in mitigation provided relevant additional facts regarding
defendant’s social history and factors under section 1170, subdivision (b)(6), including
possible physical and sexual abuse, and childhood trauma. Apparently relying on the
proof requirements as to aggravating circumstances in section 1170, the court concluded
defendant was required to provide evidence of mitigating circumstances beyond
counsel’s statements in mitigation to support imposition of the lower term. Unlike the
statutory requirements regarding circumstances in aggravation, there are no such
statutory requirements as to circumstances in mitigation. Thus, the trial court erred in
refusing to consider defendant’s statement in mitigation in exercising its discretion.
In addition, although not raised by the parties, the record reflects the trial court
misunderstood its sentencing discretion as to imposition of an upper term. Section 1170,
subdivisions (b)(1)-(3) now prohibit trial courts from considering aggravating
circumstances to justify an upper term sentence, unless the facts underlying each
aggravating factor have been established by one of three prescribed methods: (1) “the
facts underlying those circumstances have been stipulated to by the defendant[;] or [(2)]
have been found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial” (§ 1170, subd. (b)(2)); or (3) the court may “consider the defendant’s prior
convictions in determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (§ 1170, subd. (b)(3).) The People submitted
on the aggravating factors. To submit a matter is to “end the presentation of further
evidence in . . . and tender a legal position for decision.” (Black’s Law Dictionary (11th
ed. 2019) p. 1725.) Submitting a matter on the record is not, as the court apparently
thought, a concession that there were no properly proven aggravating factors. Nor was
such a statement true as a matter of law. Under section 1170, subdivision (b)(3), the
court could have relied on the certified records of defendant’s prior conviction contained
in the certified 969(b) packet and a certified RAP sheet admitted before the court as to
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prior conviction allegations to impose the upper term. Thus, the trial court
misunderstood the scope of its discretion when it stated it was limited to the lower or
middle term.
D. Section 1385
A trial court may strike a prior serious felony conviction only if the defendant falls
outside the spirit of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148,
161; People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) In deciding whether to
strike a prior conviction pursuant to section 1385, the trial court “must consider whether,
in light of the nature and circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, at p. 161.)
Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add
specific mitigating factors the trial court must consider when deciding whether to strike
enhancements from a defendant’s sentence in the interest of justice. (§ 1385, subd. (c);
People v. Sek (2022) 74 Cal.App.5th 657, 674.) Section 1385, subdivision (c) now
provides: “(1) Notwithstanding any other law, the court shall dismiss an enhancement if
it is in the furtherance of justice to do so, except if dismissal of that enhancement is
prohibited by any initiative statute. [¶] (2) In exercising its discretion under this
subdivision, the court shall consider and afford great weight to evidence offered by the
defendant to prove that any of the mitigating circumstances . . . are present. Proof of the
presence of one or more of these circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety.”
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The trial court here noted at the time of sentencing there was no case law on
whether applying the Three Strikes law was applying a sentencing enhancement under
section 1385, subdivision (c), like a “nickel prior is also applying a sentencing
enhancement.” Although the court believed there were policy reasons to apply both, the
court declined to do so.
In the time since sentencing in this case, we have filled that legal void. In People
v. Burke (2023) 89 Cal.App.5th 237, 244, based on the plain language of the statute, we
held that section 1385, subdivision (c) applies to enhancements. The Three Strikes law is
not an enhancement, but an alternative sentence for the current offense. Since the Three
Strikes law is not an enhancement, section 1385, subdivision (c)’s provisions do not
apply to it. Because section 1385, subdivision (c) does not apply to the Three Strikes
law, the court failed to exercise its discretion.
Although the trial court understood that it had some discretion in sentencing, there
are several points at which the record reflects the trial court misunderstood the scope of
that discretion. In addition, the record does not clearly indicate that the trial court would
have imposed the same sentence had it been aware of the full scope of its discretion. At
the very least, the record is ambiguous as to whether the court understood its sentencing
discretion and obligations, certainly “some of the trial court’s comments during
sentencing raise serious doubts in that regard. In the face of such an ambiguous record, it
is appropriate to remand the matter to the trial court to consider the matter under the
correct standard, to the extent it has not already done so.” (People v. Lua (2017)
10 Cal.App.5th 1004, 1021.)
As defendant notes in his reply brief, because the numerous errors in the court’s
exercise of its discretion require us to remand the matter for resentencing, we need not
address defendant’s claim as to whether the trial court failed to afford great weight to the
age of defendant’s prior conviction in determining whether to strike the five-year prior
conviction enhancement.
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II
Instructional Error on Enhancement Allegation
Defendant contends the true finding on the personal use of a deadly weapon
enhancement allegation must be reversed because the jury was instructed with a legally
incorrect theory. Specifically, the pattern instruction allowed the jury to find the
enhancement true if it concluded either the weapon used was inherently deadly or was
used in such a way as to make it deadly; but, a knife is not an inherently dangerous
weapon. The People agree the instruction was in error, but argue the error was harmless.
We are not persuaded.
A. Additional background
The trial court instructed the jury on the personal use of a dangerous or deadly
weapon with pattern instruction CALCRIM No. 3145. As relevant, the court instructed:
“A deadly or dangerous weapon is any object, instrument, or weapon that is inherently
deadly or dangerous or one that is used in such a way that it is capable of causing and
likely to cause death or great bodily injury. [¶] An object is inherently deadly if it is
deadly or dangerous in the ordinary use for which it was designed. [¶] In deciding
whether an object is a deadly weapon, consider all the surrounding circumstances,
including when and where the object was possessed, and any other evidence that
indicates whether the object would be used for a dangerous, rather than a harmless,
purpose. [¶] Great bodily injury means significant or substantial physical injury. It is an
injury that is greater than minor or moderate harm. [¶] Someone personally uses a
deadly or dangerous weapon if he or she intentionally does any of the following: [¶] 1.
Displays the weapon in a menacing manner; [¶] OR [¶] 2. Hits someone with the
weapon.” (Italics omitted.)
In closing argument, the People argued both legal theories. As to the knife, the
People stated, “I’m not going to spend much time on the [deadly weapon] allegation. We
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all heard her Honor describe the law. [¶] A weapon -- or, excuse me, an object is
inherently deadly if it is deadly or dangerous in the ordinary use for which it was
designed. [¶] Certainly a knife, a hunting knife, any kind of knife and a taser are
inherently dangerous in the purpose for which they were used and designed. [¶] Did the
Defendant display the weapon in a menacing manner.· Again, we know this.· We heard
this in the 911 call.· Deputy Higley told us this.· And, again, [S.S.] told us this on the
stand. [¶] Being punched at with a taser and swung at with the knife.· These are
dangerous weapons. That’s not in dispute here.· That’s not what this trial is about.”
(Italics added.)
The defense closing argument relied heavily on challenging S.S.’s credibility,
characterizing him as “completely wholly indisputably unreliable.” Defense counsel
argued S.S. was a drug addict, under the influence of methamphetamine at the time of the
robbery, a perjurer, and a scam artist. Defense counsel continued, S.S. had a character
for untruthfulness, as testified to by his brother, and had sustained multiple felony
convictions. Defense counsel also pointed out discrepancies in S.S.’s testimony about the
room and the robbery, in particular his statements to Higley regarding whether defendant
was merely holding the weapons or trying to punch him with the taser and swinging the
knife at him.
B. Analysis
An “ ‘ “inherently deadly or dangerous” ’ ” weapon is a term of art describing
objects that are deadly or dangerous in “ ‘ “the ordinary use for which they are
designed,” ’ ” that is, weapons that have no practical nondeadly purpose. (People v.
Stutelberg (2018) 29 Cal.App.5th 314, 318-319.) Because a knife has ordinary, innocent
purposes such as cutting food or other items, it is not an inherently deadly weapon.
(People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat).) It may, however, be a deadly
weapon when used in a manner capable of causing and likely to cause death or great
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bodily injury. Because, as a matter of law, a knife is not an inherently dangerous
weapon, we agree with the parties that the trial court erred by “presenting the jury with
two theories by which it could find the [knife] a deadly weapon: (1) inherently or (2) as
used. The first theory (inherently) is incorrect, but the second theory (as used) is
correct.” (Aledamat, at p. 7.) Thus, the issue in this case is whether this error was
prejudicial.
If a trial court instructs the jury on alternative theories of guilt, one of which is
valid and one of which is “legally inadequate,” we evaluate prejudice under the harmless
beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24.
(Aledamat, supra, 8 Cal.5th at p. 3.) We “must reverse the conviction unless, after
examining the entire cause, including the evidence, and considering all relevant
circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt.”
(Aledamat, at p. 3.) The question is not whether we believe it clear beyond a reasonable
doubt that the defendant is guilty under the legally correct theory, but whether we can
say, beyond a reasonable doubt, that the legally incorrect jury instruction did not taint the
actual jury verdict. (People v. Thompkins (2020) 50 Cal.App.5th 365, 399.) Among the
ways in which we may assess the error is by reviewing what the jury necessarily found,
as well as the parties’ arguments, including whether the prosecutor relied on the invalid
legal theory in closing arguments. (People v. Baratang (2020) 56 Cal.App.5th 252, 263-
264.)
We cannot conclude this error was harmless beyond a reasonable doubt. The
prosecution’s limited argument on the nature of the knife as a weapon explicitly stated
the knife was an inherently dangerous weapon and that the issue was not in dispute. A
rational jury could conclude that the prosecutor’s erroneous assertion that the defendant’s
possession of a knife while committing the robbery meant he committed the offense with
a deadly weapon, irrespective of how the knife was used.
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Further, although S.S.’s trial testimony that defendant swung the knife at him
could have served as the basis for finding defendant had used the knife as a deadly
weapon, given the challenges to S.S.’s credibility, we cannot conclude beyond a
reasonable doubt that the jury would have necessarily reached this conclusion. When
speaking with law enforcement after the robbery, S.S. said defendant did not make any
motion toward him with the knife or taser, and never mentioned defendant swung the
knife at him, or that he jumped back two to three feet to avoid being hit. He also did not
describe the knife as a hunting knife. Nor did S.S. testify as to how close defendant was
when swinging the knife and could not describe how defendant swung the knife. And,
Higley opined based on the size of the room, it would be difficult to avoid being struck
by someone swinging a knife. In addition to these discrepancies in S.S.’s pretrial
statements and trial testimony, there were other significant challenges to S.S.’s
credibility: he had multiple prior convictions; his brother, testified that in his opinion,
S.S. is not truthful or honest; he is a “scam artist” who regularly lies; and S.S. was a drug
addict who had been up for three days prior to the robbery using methamphetamine.
With the instructional error, the jury could have disbelieved S.S.’s testimony as to
how the knife was used yet still found the enhancement true, based on the
misclassification of the knife as an inherently deadly weapon. Given the factual
uncertainty as to whether defendant used the knife in a manner likely to cause serious
physical injury, we cannot say that a properly instructed jury would have found that
defendant necessarily used the knife in a deadly or dangerous manner. (People v.
Stutelberg, supra, 29 Cal.App.5th at pp. 318-319.) Accordingly, we must reverse the
personal use of a deadly weapon enhancement.
DISPOSITION
The judgment of conviction of the robbery is affirmed. The personal use of a
deadly weapon enhancement is reversed. The sentence is vacated. The matter is
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remanded for further proceedings to allow the prosecution to retry defendant on the
deadly or dangerous weapon use allegation, if they elect to do so, and for resentencing.
Upon resentencing, the court may not impose a sentence greater than the one originally
imposed.
HULL, Acting P. J.
We concur:
EARL, J.
BOULWARE EURIE, J.
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