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■ People v. Gutierrez, No. F055925

A jury found Mario Gutierrez guilty of battery against a custodial officer at the Lerdo Detention Facility in Kern County.  (Pen. Code, § 243.1; see Pen. Code, § 831, subd. (a).)[1]  The trial court found four allegations of serious felony priors (§§ 667, subd. (a)(1), 1192.7, subd. (c)) true within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and imposed a 25-to-life term consecutive to a term of 25-to-life-plus-one-year already imposed in another case.  On appeal, he argues an insufficiency of the evidence issue, two interrelated instructional issues, and a sentencing issue.  We affirm the judgment.

1.         Sufficiency of the Evidence

Gutierrez argues that an insufficiency of the evidence of necessary, not excessive, force by the detention deputy is in the record.  The Attorney General argues the contrary.

Before discussing the law, we turn to the record.  On the morning of March 22, 2007, Robin Norton, a detention deputy, used the public address system to tell Gutierrez his time in the recreation yard was up.  After communicating by radio with Troy Kresha, a detention deputy on the other end of the sally port, Norton opened the door on her side of the sally port and followed Gutierrez toward the door on the other side of the sally port.  As ordered, Gutierrez walked with his hands behind his back.

Kresha opened the door on his side of the sally port to let Gutierrez go back to his cell.  As he walked out of the sally port, Gutierrez turned in the wrong direction.  In a conversational tone, Kresha told him he needed to go back to his cell.  Gutierrez stopped, raised both fists into the air, and said, “No.”  He bolted and ran, not toward his cell, but toward the receiving area.

Kresha’s job was to secure inmates, so he followed Gutierrez and told him to stop and put his hands behind his back.  Disobeying him, Gutierrez pushed on the receiving door leading to the garage, trying to get out.  Had Gutierrez been there at the right time, he probably could have caught an officer going through there.  That was a security issue.  From a distance of three to four feet, Kresha fired a couple of two-second bursts of pepper spray.

Gutierrez turned on Kresha, throwing punches with both fists.  Kresha started backpedaling.  He fired another burst of pepper spray.  Gutierrez kept advancing on him and kept throwing punches at him.  Kresha kept backpedaling until he hit the end of the hallway where a door opens to a wider hallway leading into the receiving area.  For officer safety, he felt his duty was to “stand there and defend that area” as the “last defense” to keep Gutierrez away from scissors and other items he could use as weapons.

Gutierrez kept advancing on Kresha, who fired another burst of pepper spray, again with no effect.  Dropping the pepper spray from his right hand and the keys from his left hand, Kresha started throwing punches back.  Neither he nor Gutierrez made contact with each other until a punch from Gutierrez broke his nose.  He had blood in his eyes, could not see, and backed up again, just as other officers arrived.  Apart from the effect, if any, of the pepper spray, he caused Gutierrez no physical harm.

Gutierrez argues that he did nothing more than push ineffectually on a locked door Kresha knew could not be opened, that he could not gain access to any other portion of the jail without coming back the way he came, and that Kresha used pepper spray before Gutierrez threatened or assaulted him.  He argues, too, that other officers were close enough to arrive within moments to assist in gaining his compliance and that Kresha did not give him sufficient time to obey the order to stop and put his hands behind his back.

Our duty on a challenge to the sufficiency of the evidence is to review the whole record in the light most favorable to the judgment for substantial evidence – credible and reasonable evidence of solid value – that could have enabled any rational trier of fact to have found the defendant guilty beyond a reasonable doubt.  (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Prince (2007) 40 Cal.4th 1179, 1251.)  In doing so, we presume in support of the judgment the existence of every fact a reasonable trier of fact could reasonably deduce from the evidence.  (Prince, supra, 40 Cal.4th at p. 1251.)  The same standard of review applies to circumstantial evidence and direct evidence alike.  (Ibid.)

From the evidence in the record, a reasonable trier of fact could reasonably infer that Kresha used necessary, not excessive, force to discharge his duty to secure inmates.  Likewise, a reasonable trier of fact could reasonably make inferences contrary to all of those Gutierrez argues.  Before a reviewing court can reverse the judgment for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.”  (People v. Redmond (1969) 71 Cal.2d 745, 755.)  That is not the state of the record here.  Gutierrez’s insufficiency of the evidence argument simply asks us to reweigh the facts.  (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)  That we cannot do.

3.         Sentencing Issue

On the premise that the trial court had the statutory discretion to impose either a felony sentence or a misdemeanor sentence, Gutierrez argues that the imposition of a felony sentence with no showing in the record of the trial court’s awareness of that discretion denied him due process.  The Attorney General argues that the trial court had no such discretion.

In 1976, the Legislature enacted section 243.1 to punish the crime of battery against a custodial officer as a felony.  (Stats. 1976, ch. 1139, § 150.1, operative July 1, 1977.)[2]  Years later, the Legislature amended subdivision (b) of section 243 to punish the same crime as a misdemeanor.  (Stats. 1982, ch. 1353, § 2.)[3]  “[W]hile our courts sometimes speak of the sections as though the distinction had something to do with the interpretation, at other times nothing is perceptible from which such inference could be drawn.  On the whole, little depends on this matter, beyond mere convenience of citation.’”  (In re Wilson (1925) 196 Cal. 515, 523, quoting Bishop, Commentaries on the Law of Statutory Construction, p. 61.)  “Likewise, the provisions of the same code relating to the same subject matter are to be construed together as one act, as though all were passed at the same time.”  (Kahn v. Kahn (1977) 68 Cal.App.3d 372, 381, citing Rose v. State of California (1942) 19 Cal.2d 713, 723.)

On that foundation, Gutierrez argues that the crime of battery against a custodial officer, for which section 243.1 authorizes felony punishment and subdivision (b) of section 243 authorizes misdemeanor punishment, is an “alternative felony/misdemeanor offense, also known as a ‘wobbler,’” which our Supreme Court defines as “a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court under Penal Code section 17, subdivision (b).”  (People v. Statum (2002) 28 Cal.4th 682, 685; see §§ 17, 18.)  The Attorney General, on the other hand, argues that section 243.1 “contains no provision for an alternative punishment.  Therefore, the trial court lacked discretion to contemplate or impose a misdemeanor penalty.”

We need not reach that issue.  Assuming, without deciding, that the trial court had statutory discretion to impose either a felony sentence or a misdemeanor sentence for the crime of battery against a custodial officer, we conclude, for two reasons, that the record shows no error.

First, in light of the presumption on a silent record that the trial court is aware of the applicable law, including statutory discretion at sentencing, we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion.  (People v. Mosley (1997) 53 Cal.App.4th 489, 496, citing People v. Moran (1970) 1 Cal.3d 755, 762; People v. Davis (1996) 50 Cal.App.4th 168, 170-173; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521-1523; accord, Evid. Code, § 664.)

Second, the record shows that the trial court found no circumstances in mitigation, found five circumstances in aggravation, and observed just before imposing a 25-to-life three strikes law sentence, “He has a lengthy criminal record covering almost 16 years, he’s performed poorly on both probation and parole, and has an extended history of violence.”  On that record, the trial court clearly would not have exercised sentencing discretion to impose a misdemeanor sentence.  (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13, citing People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)

■ HELD:

Conviction and sentence for battery against a custodial officer is affirmed where: 1) there is sufficient evidence in the record that the detention deputy used necessary, not excessive, force to discharge his duty to secure inmates; 2) the court improperly instructed the jury on the custodial officer's use of force, but the instructional error did not produce an improper verdict; and 3) trial court did not err in the imposition of a felony sentence against defendant.
People v. Gutierrez .-F055925- 5/28/09 CA5
People v. Gutierrez .-F055925- 5/28/09 CA5-PDF 

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