People v. Gardner

THE PEOPLE, Plaintiff and Respondent, v. WILLIE GARDNER, Defendant and Appellant.

C088038

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)

June 30, 2020

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 17-CR-26594)

Defendant Willie Gardner appeals a judgment entered after a jury found him guilty of custodial possession of a weapon (Pen. Code, § 4502, subd. (a))¹ and the trial court found true the special allegation that he had suffered three prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). His arguments on appeal may be grouped into three categories: (1) defendant's trial counsel rendered ineffective assistance of counsel for failing to object to alleged prosecutorial misconduct; (2) the trial court erred prejudicially in instructing the jury with CALCRIM No. 362 because no prior false statement was admitted at trial; and (3) the trial court erred in imposing fines and fees without assessing defendant's ability to pay them. We affirm the judgment.

BACKGROUND

This case arose from a March 2017 search of defendant's person while he was serving time in state prison. The primary issue for the jury was whether to believe the correctional officers, who testified to finding an inmate manufactured knife hidden in defendant's soft cast, or defendant, who maintained that the knife was planted by the officers. We briefly recount the relevant testimony of the four officers and defendant. Further details will be provided as needed in the discussion of defendant's claims, infra.

A. The People's Case

Correctional Officer Ryan Colby testified to responding to a call for help with a resisting inmate. He observed defendant engaged in a physical altercation with Officer Barton, who was trying to put "flex cuffs" on defendant due to the soft cast on his right arm. After defendant was secured with restraints, Officer Barton performed a clothed body search,² which revealed no contraband. They did not search defendant's cast to avoid injuring his arm. Defendant was taken for medical clearance and then to Sergeant David Brunkhorst's office for further questioning. While there, Officer Colby used a handheld metal detector and the wand alerted to defendant's cast. Officer Colby asked what was in the cast, but he did not hear defendant answer. Simultaneously, defendant began resisting. Officer Colby secured defendant against the wall, and defendant stopped resisting. Officer Colby then "retrieved an inmate manufactured deadly weapon from his soft cast." It had a cap on the sharp end to protect the carrier from injury. This weapon was presented to the jury. Officer Colby testified that he did not plant a weapon on defendant, nor participate in a conspiracy to set defendant up. He also did not know that defendant ostensibly had a metal screw in his arm from a surgery.

Correctional Officer Jarret Scheurer testified to responding to a resisting inmate call and saw defendant already restrained on the ground when he arrived. Officer Barton performed a clothed search of defendant, but Scheurer did not see him search defendant's cast. Officer Scheurer next saw defendant in the sergeant's office being pinned against a wall by Officer Christopher Parham, Officer Colby, and Sergeant Brunkhorst. Officer Colby told Scheurer that defendant had a weapon in his soft cast and then Scheurer saw Colby remove that weapon. Officer Colby handed it to Officer Scheurer, who put it in a "sharps container." After Officer Colby secured defendant in the holding cage, Officer Scheurer returned the sharps container to Colby. Officer Scheurer confirmed the weapon presented to the jury was in the same condition as when Scheurer returned it to Officer Colby on the day in question.

Correctional Officer Parham testified to responding to a call for a resisting inmate, and when he arrived, he saw defendant being restrained by Officer Barton on the ground. Officer Parham saw defendant again when he was brought into the sergeant's office for an interview. Officers instructed defendant to face the wall so that they could check his soft cast with a metal detector. The metal detector alerted, and Officer Colby asked defendant what was in the cast. Officer Parham testified defendant "immediately or reluctantly said it's a knife." A brief struggle ensued, but ended after Officer Colby removed the weapon from the cast. Defendant was then escorted to a holding cell, and later to administrative segregation, where Officer Parham advised him of his Miranda³ rights; defendant refused to sign a Miranda advisement form.⁴ Officer Parham denied being a member of a conspiracy to set up defendant.

Correctional Sergeant Brunkhorst, a member of the investigative service unit, testified to responding to a resisting inmate call. When he arrived, he saw defendant on the ground secured in restraints. Sergeant Brunkhorst directed Officer Colby to take defendant from the scene. Sergeant Brunkhorst learned that defendant might have a weapon and instructed Officer Colby to bring him to his office, and an unnamed person secured the metal detector to check the soft cast. The metal detector alerted to the soft cast area, and Sergeant Brunkhorst asked defendant what was in his cast. Defendant first said, "[N]othing," but later spontaneously offered, "[I]t's a knife." Brunkhorst saw Officer Colby partially unwrap the soft cast and retrieve an inmate manufactured weapon that could be characterized as a knife.

B. The Defense

The defense recalled Officer Colby, who relayed information consistent with his earlier testimony, adding that he had supplied the flex cuffs used to restrain defendant. Defense counsel impeached Officer Colby's earlier trial testimony that he did not recall hearing defendant say anything about a knife with his preliminary hearing testimony in which Colby testified that defendant had stated he had a knife.

Defendant testified that he had been in the yard. When he returned to his cell there was a "cell slip" for his headphones, which had been confiscated during a cell search because they allegedly had been altered. In response, defendant refused to be locked up until he spoke to the sergeant. Officer Barton told him to turn around because he was going to handcuff him. Barton grabbed his right arm to put it behind his back, and defendant warned him, "Look, I just had surgery, don't twist my arm." Defendant admitted he struggled with Officer Barton, stating he told him, "[L]ook, I just had surgery, don't grab my hand like that, you can't put a cuff on it." Officer Barton wrestled defendant to the ground and radioed for a flex cuff. Six or seven officers responded to the radio call, and defendant was placed in leg restraints. Before leaving for a medical evaluation, officers conducted a patdown search of defendant, including his right arm and cast area, though they did not remove the cast. They also conducted a visual search for injuries at the medical evaluation. No weapons were found.

Thereafter, defendant was transported to the "program office," where he was placed in a holding cell. Officer Colby took him into the sergeant's office where the sergeant and two other officers were waiting. The officers pushed him against the wall, and Sergeant Brunkhorst asked him whether he had any weapons. Defendant testified that he said, "[N]o." Officer Colby asked what he had in his hand, and defendant responded, "[N]othing." Colby said that the metal detector was going off, and defendant explained to the officers, "I had surgery on my hand, I got a screw in my hand." Defendant testified the officers already knew that he had had surgery because he had "been on the yard ten months wearing a cast."

Officer Colby and Sergeant Brunkhorst unwrapped defendant's cast, and one of them stated that he had a knife. Defendant responded, "I don't have no knife." The nurse then came in and rewrapped his cast. He was then placed in a holding cell and later taken to administrative segregation. Defendant was previously convicted of second degree robbery, petty theft with priors, and for being a felon in possession of a firearm. On cross-examination, the prosecution sought to clarify whether it was defendant's hand or his arm that was injured. Defendant stated, "The mark speaks for itself. This is a fresh surgery I just had in San Joaquin October 28th[, 2016]." Defendant conceded he did not have documentation showing he had had surgery during the March 2017 timeframe.⁵ On redirect, defendant showed the jury the scar on his right hand and denied having a knife.

C. The People's Rebuttal

The People recalled Sergeant Brunkhorst in rebuttal, eliciting in pertinent part, that on the day in question defendant had never complained of pain or discomfort, was wearing a bandage above his wrist on his forearm area, and that the metal detector had alerted above the hand and wrist area. Sergeant Brunkhorst had never had a conversation with defendant about any special medical needs defendant may have had.

D. The Verdict and Sentencing

The jury found defendant guilty of custodial possession of a weapon (§ 4502, subd. (a)), and in bifurcated proceedings, the trial court found true the special allegation that defendant had suffered three prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court partially granted defendant's Romero⁶ motion, striking two of defendant's three prior strikes. The court sentenced him to the upper term of four years, doubled to eight years because of the prior strike, to be served consecutively to the sentence he was already serving. The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine (§...