P. v. Crane 4/10/07 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C050495

Case Date: 06/28/2007

Preview:Filed 4/10/07

P. v. Crane 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Siskiyou) ----

THE PEOPLE, Plaintiff and Respondent, v. GARRETT MORGAN CRANE, Defendant and Appellant.

C050495 (Super. Ct. No. 050438)

A jury found defendant Garrett Crane guilty of receiving stolen property and two misdemeanor counts of resisting a peace officer. The jury also found defendant had numerous prior

convictions. The trial court sentenced him to an aggregate term of seven years in prison, which included the upper term of three years for receiving stolen property, doubled as the result of a prior strike. The trial court also sentenced him to time served in

jail on each count of resisting a peace officer, "concurrently with each other" and "consecutive to the state prison sentence."

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On appeal, defendant contends:

(1) the evidence was

insufficient to support one of his convictions for resisting a peace officer; (2) the trial court erred in failing to define the term "great bodily injury" for the jury; (3) he was denied effective assistance of counsel when his attorney failed to object to certain remarks the prosecutor made during closing argument; (4) the trial court's imposition of the upper term sentence for receiving stolen property violated his federal constitutional right to a jury trial; and (5) the trial court erred in failing to stay one of his sentences for resisting a peace officer. We will accept the People's concession of error regarding the trial court's failure to stay one of the sentences for resisting a peace officer and will modify defendant's sentence by staying the sentence on count four (the second count of resisting a peace officer). We will also conclude the trial

court erred to the extent it relied on some aggravating circumstances not found by the jury in imposing an upper term sentence, but find the error harmless beyond a reasonable doubt because the court undoubtedly would have imposed the upper term even if it had not taken those circumstances into account. Rejecting the remainder of defendant's arguments, we will affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND The facts relating to defendant's conviction for receiving stolen property are not at issue and therefore we need not recite them. For our purposes, it is sufficient to recite the 2

following facts underlying defendant's convictions for resisting a peace officer. Siskiyou County Sheriff's Deputy Mack McDonald arrested defendant and took him to jail. Once inside the receiving area,

defendant refused to comply with requests by Siskiyou County Jail Correctional Officer M. Lamarr to remove his watch and shoes and instead told Officer Lamarr, "How `bout you suck my dick." Officer Lamarr placed defendant in a compliance hold and Correctional Sergeant M. Barber

led him into a holding cell. followed close behind. his shoes were removed.

Defendant was placed on the floor and As the two officers started to leave

the holding cell, defendant jumped up and moved quickly toward them. Sergeant Barber and Deputy McDonald both drew their Deputy McDonald told

Tazers and pointed them at defendant.

defendant, who had reached the threshold of the cell or just before it, several times to step back. He complied, and the

officers were able to close the door to the cell. Defendant was charged with two counts of resisting a peace officer -- one for Sergeant Barber and one for Officer Lamarr. In closing argument, the prosecutor argued that defendant's refusal to comply with Officer Lamarr's requests in the receiving area and then his attempt to charge the officers in the holding cell constituted two separate acts of resisting a peace officer. The jury found him guilty of both counts.

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DISCUSSION I Sufficiency Of The Evidence Defendant contends the evidence was insufficient to support his conviction on count three -- resisting Sergeant Barber -because Sergeant Barber was "merely present in the cell" when defendant refused to comply with Officer Lamarr's request to surrender his watch and shoes. In making this argument,

defendant inexplicably ignores the later incident in the holding cell, when he jumped up from the floor and rushed toward both Officer Lamarr and Sergeant Barber. This omission is all the

more inexplicable because defendant specifically notes the later incident in the statement of facts in his brief, which immediately precedes his sufficiency of the evidence argument. We have made it clear that to prevail on an insufficiency of the evidence argument, "the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury's verdict. [Citation.] If the defendant fails

to present us with all the relevant evidence, . . . then he cannot carry his burden of showing the evidence was insufficient because support for the jury's verdict may lie in the evidence he ignores." (People v. Sanghera (2006) 139 Cal.App.4th 1567,

1574, second italics added.) That is the case here. Because defendant has failed to

persuade us the evidence of the incident in the holding cell 4

does not support his conviction for resisting Sergeant Barber, his challenge to that conviction fails. II Jury Instruction On "Great Bodily Injury" The information in this case alleged defendant's prior conviction of violating Penal Code1 section 4501, which makes it a felony for a "person confined in a state prison" to commit "an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury." Under the prosecutor's theory, to constitute a

prior "strike" conviction that would support the doubling of the term for receiving stolen property, the section 4501 conviction had to have been based on defendant's personal use of "a dangerous or deadly weapon." 1192.7, subd. (c)(23).) In a bifurcated proceeding before the jury on the prior conviction, the prosecution presented evidence that defendant was convicted of violating section 4501 based on an incident in which he used a blow gun to shoot a blow dart at two officers. The trial court instructed the jury that "[a] deadly or dangerous weapon means any weapon, instrument, or object that is capable of being used to inflict great bodily injury or death." The court did not instruct the jury on the meaning of the term "great bodily injury." Defendant contends this was error (

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