People v. Lipsey

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER LIPSEY, Defendant and Appellant.

F080784

California Court of Appeals, Fifth District

April 27, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County No 17CMS3190. Michael J. Reinhart, Judge.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E Winters, Chief Assistant Attorney General, Michael P Farrell, Assistant Attorney General, Eric L. Christoffersen Daniel B. Bernstein, and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, ACTING P. J.

INTRODUCTION

Appellant and defendant Christopher Lipsey, who was serving a life term in the California Department of Corrections and Rehabilitation (CDCR), was convicted after a jury trial of violating Penal Code^[1] section 4501, subdivision (a), assault with a deadly weapon by a state prison inmate. He was sentenced to the second strike term of 22 years, consecutive to the indeterminate term he was already serving.

On appeal, defendant argues he could not be convicted of violating section 4501 because he was serving a life term at the time of the offense; that statute is not applicable to inmates serving life terms; and his conviction must be reduced to the lesser included offense of assault with a deadly weapon in violation of section 245, subdivision (a)(1). He also argues the trial court should have granted his section 1381 motion to dismiss the information because the district attorney did not timely file charges against him. Defendant further asserts the court improperly imposed a restitution fine and other fees without determining his ability to pay, and the matter must be remanded for resentencing because of the recent enactment of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), that amended the sentencing provisions of section 1170.

We find the trial court properly denied defendant's motion to dismiss. However, we are compelled by People v. Noah (1971) 5 Cal.3d 469 (Noah) to find that defendant's conviction for violating section 4501, subdivision (a) must be reduced to the lesser included offense of assault with a deadly weapon. Defendant's sentence will be vacated, and the matter remanded for resentencing for that reason, and also because of the enactment of Senate Bill 567. Since the matter must be remanded for a new sentencing hearing, we need not address defendant's contentions about the restitution fine and fees.

FACTS

Prior Interaction with Sergeant Parra

Defendant was an inmate at the Corcoran State Prison. On July 5 or 11 2015 (RT 775, 780-781), around 11:00 p.m., Sergeants Payan and Parra were on duty in the unit where defendant was housed. The officers checked each cell every 30 minutes. Payan noticed defendant had used a sheet to cover his cell door. Payan contacted defendant and asked why he did that. Defendant replied that Parra was shining his flashlight on his face. Defendant said he would only remove the obstruction if Parra was moved to another cell block.

Sergeant Parra testified when he conducted his cell check, defendant's cell door was still covered with a sheet. Parra aimed his flashlight into the cell, told defendant to remove the sheet, and defendant refused. When Parra returned for the next two checks, the sheet was covering the door and defendant would not respond. One week later, when Parra was again on duty to conduct security checks, defendant again covered his door with a sheet and refused to respond. Parra testified he had no further problems with defendant until the charged incident occurred.

The Charged Incident

On July 8, 2016, defendant was housed by himself in a cell located in a locked down unit for the Enhanced Outpatient Program (EOP). The inmates in this unit are considered high risk and dangerous to others and may have mental issues and receive psychotropic medications. The same unit also contained administrative segregation cells for inmates with disciplinary problems.

Around 6:00 p.m., Officers Hernandez and Maciel were instructed to remove defendant from his cell because he was going to see a psychiatrist. The officers opened the food port in the cell's door and instructed defendant to put his back to the door, place his hands behind his back, and put his hands through the food port. Defendant complied, and the officers placed him in doubled locked handcuffs behind his back.

Officer Hernandez testified they escorted defendant to a holding cell in another location but in the same unit and placed him there by himself. The holding cell was secured by a padlock. Hernandez believed Officer Maciel secured the holding cell's padlock. Defendant was still restrained with his arms behind his back when they left him in the holding cell.

Sergeant Parra testified he saw defendant in the holding cell while he was making his rounds. Defendant's hands were restrained behind his back. Parra and defendant did not speak to each other. Officer Pimentel also saw defendant in the holding cell, and defendant's hands were cuffed behind his body.

Defendant Escapes and Throws the Chair

There was an area adjacent to the holding cells where there were tables and chairs for the correctional officers to have their meals and write reports. The table area was separated from the holding cells by a partition that was about four feet high. A television was mounted to the wall above the tables.

Officer Hernandez testified that after he saw defendant in the holding cell, he sat down at the table area with Sergeant Parra and Officers Pimentel and Maciel. Parra was seated with his back to the partition, and he was writing a report and eating.

Sergeant Parra testified he suddenly felt a hard impact on his head and upper back. Parra testified a metal chair "rolled off the back of my head" and landed about 10 feet away from him. Parra looked behind him and saw defendant standing behind the partition and staring at him. Both of defendant's hands were cuffed together but they were in front of his body. Defendant headed toward another section of the unit. Parra ordered him to stop, but defendant failed to obey his order and kept going.

Officer Pimentel saw the chair fly over the partition, directly towards the table and in Officer Parra's location.

Officer Hernandez heard a metal chair hit the floor. He looked to his left and saw the chair bounce on the floor. Hernandez saw defendant run toward another section of the unit and realized he had escaped from the holding cell. Officers Hernandez and Pimentel chased defendant; defendant eventually obeyed their orders and dropped to the floor. He was retaken into custody without further incident and placed in a different holding cell.

Officer Pritchard testified he was present when defendant was in holding cell after he was recaptured. In a very loud voice and in an aggressive manner, defendant said," 'I got that motherf[**]ker and I will get these bitches, too.' "

Officer Pimentel testified none of the officers involved in initially placing defendant in the holding cell took responsibility for failing to secure the lock on the cell door, perhaps because the officer would have been disciplined or lost his job.

Sergeant Parra's Injuries

Sergeant Parra testified that as a result of the blow, he felt dizzy and was bleeding from the back and side of his head. He was taken by ambulance to the hospital and treated in the emergency room. He had a two-inch laceration on the back right side of his head, and nine staples were required to close the wound. He was placed in a neck brace and given pain medication. At the time of trial, Parra still had a scar from the incident.

Defense Evidence

Defendant testified at trial and admitted he was convicted of robbery for stealing a cell phone in 2006, but he thought it was just a theft offense. He was convicted of attempted murder for shooting someone with a gun in 2009 and had been imprisoned since that time.

Defendant testified that he had been admitted to a suicide bed more than 20 times prior to this incident. Defendant was told he was bipolar and had schizoaffective disorder. He saw a psychiatrist every day and received psychotropic drugs.

On the day of the charged offense, defendant was housed in a unit where he received treatment for his mental health issues. He was depressed, unable to sleep, and stressed out because his father had died a few days earlier. He informed a watch officer about how he was feeling and asked to see a psychiatrist, but no one came to see him. Defendant remained in his cell but was able to contact another inmate with a "fishing line," and asked for some pills. The other inmate passed some pills to him. Defendant took 20 to 30 pills and tried to kill himself because no one was helping him. He did not know what kind of pills he swallowed.

About three hours later, defendant told the watch officer during the next welfare check that he was feeling suicidal. Defendant was placed in handcuffs and escorted to the holding cell, where he stayed for several hours. A female psychiatrist eventually arrived and asked if he tried to harm himself. Defendant told the psychiatrist how he felt and that he had taken about six pills. The psychiatrist told defendant that he needed to be admitted to "suicide watch" again and left to prepare the paperwork.

Defendant testified that the holding cell was located near the officers' table area, and a television was mounted on the wall above the tables. While he waited for the psychiatrist to return, defendant realized the television sound was too loud, and it was bothering him. Defendant also started to feel the effects from the pills; his heart was beating...