People v. Power

1

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA CODY POWER, Defendant and Appellant.

F084793

California Court of Appeals, Fifth District

March 13, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No BF176741A John W. Lua, Judge.

Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and William K Kim, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

HILL P. J.

THE COURT ^[*]

Defendant Joshua Cody Power contends on appeal that his sentences on counts 1 and 3 must be vacated and the case remanded for resentencing because the trial court abused its discretion in imposing the upper terms pursuant to Penal Code^[1] section 1170 subdivision (b).^[2] We agree that the trial court erred in its application of section 1170, subdivision (b), but conclude any error was harmless. We affirm.

PROCEDURAL SUMMARY

On June 22, 2022, the Kern County District Attorney filed an amended information charging defendant with first degree murder (§ 187, subd. (a); count 1); assault by means of force likely to produce great bodily injury while confined in prison (§ 4501, subd. (b); count 2); and attempt by threats or violence to deter a correctional officer from performing his duty (§ 69; count 3). As to count 2, it was further alleged that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). It was also alleged that defendant has five prior strike convictions under the "Three Strikes" law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), two of which were prior serious felony convictions (§§ 667, subd. (a)).

The district attorney alleged the following circumstances in aggravation: the crime involved great violence (California of Rules of Court, rule 4.421(a)(1));^[3] the victim was particularly vulnerable (rule 4.421(a)(3)); defendant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); and defendant has prior convictions that are numerous or of increasing seriousness (rule 4.421(b)(2)).

On July 15, 2022, a jury found defendant guilty of the lesser included offense of voluntary manslaughter (§ 192) on count 1, and guilty as charged on count 2 (§ 4501, subd. (b)) and count 3 (§ 69). The jury found true the allegation that defendant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)).

On July 15, 2022, a bench trial was held on the prior convictions and aggravating circumstances allegations. The court found not true the alleged aggravating circumstance that the victim was particularly vulnerable. The court found true the five prior strike convictions, two of which were prior serious felony convictions, and the three remaining aggravating circumstances allegations: (1) that the crime involved great violence (rule 4.421(a)(1)); (2) that defendant engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)); and (3) that defendant has prior convictions that are numerous or of increasing seriousness (rule 4.421(b)(2)).

On August 12, 2022, the trial court sentenced defendant to prison for the indeterminate term of 33 years to life (the upper term, tripled pursuant to § 667, subd. (e)(2)(A)(i)) on count 1 (voluntary manslaughter; § 193, subd. (a)) plus 10 years for the two prior serious felony conviction enhancements (§ 667, subd. (a)), and six years (the upper term) on count 3 (attempt by threats or violence to deter a correctional officer from performing his duty; §§ 18, 69). The term imposed on count 2 was stayed under section 654.

On August 12, 2022, defendant filed a notice of appeal.

FACTS

Prosecution

Defendant and Kevin Mansfield were inmates at a corrections facility. They had been housed in the same cell since approximately December 2017. Their cell was in a locked and secure unit.

On February 16, 2018, correctional officer Kevin Almond came on duty at 10:00 p.m. Almond testified that in defendant's unit all cell doors are locked at 11:00 p.m. Almond's supervising officer on the night of the incident, correctional officer Khwann Oliver, testified that routine inmate counts are conducted daily at 5:00 a.m 12:00 p.m., 5:00 p.m., 9:30 p.m., and 11:00 p.m.^[4] During inmate counts, a correctional officer is supposed to go to each cell in the unit to verify all inmates are physically present, coherent, and responsive.

Almond testified he was briefed by the officers who were on the prior shift when he began his shift on the evening of the incident that the 9:00 p.m. routine inmate count had been conducted and there had been no incidents in the unit. The control booth officer on duty in the unit that evening, correctional officer Yolanda Pantoja, whose shift also began at 10:00 p.m., stated that according to protocol, she would have been informed by the officer with the prior shift that the routine 9:30 p.m. inmate count had been performed. She also testified that she believed the 9:30 p.m. count had been conducted according to standard procedure because no one had informed her otherwise. Pantoja stated that she had not heard any unusual sounds in the unit from the time she began her shift at 10:00 p.m. until Almond began the 11:00 p.m. inmate count.

At approximately 11:00 p.m., Almond began the 11:00 p.m. inmate count. He stated that at approximately 11:03 p.m. he approached the cell occupied by defendant and Mansfield. He noticed the light of their cell was still on and their window was partially covered by cardboard. From outside the cell, Almond ordered the inmates to take the cardboard off the window but received no response. Almond testified that when he looked inside the cell through the uncovered part of the window, he saw the two inmates about two feet from the back of the cell. Mansfield's body was laying on the floor, and defendant was laying on top of him, punching the right side of Mansfield's face. Almond said that he ordered the inmates to stop fighting and get in a prone position, but defendant continued to punch Mansfield, so he radioed other officers for assistance. Almond testified that at the time he was not sure what Mansfield's condition was, but he did not see Mansfield make any voluntary movement or response. He only saw Mansfield's body move as it was being struck by defendant.

When the inmates did not comply with Almond's orders, he pepper sprayed inside the cell through the food port. He stated that the first burst of pepper spray had no effect on either inmate, and defendant continued to punch Mansfield's face. Almond testified that he realized Mansfield was incoherent, so he radioed that there was a medical emergency. Almond again ordered defendant to stop fighting and to get in a prone position, but defendant replied, "F[***] you" and continued. Almond sprayed a second burst of pepper spray into the cell, which caused defendant to slide off Mansfield and lay on the side of the cell. Defendant attempted to stand but fell. Almond testified that Mansfield made no movements after defendant stopped punching him. Almond ordered defendant to back up to the food port so he could place handcuffs on him but he did not comply.

Assisting officers performed an extraction on defendant but he resisted the officers' efforts to restrain him, punching and kicking the officers. Oliver hit defendant's legs and buttocks with his baton but defendant continued to resist until the officers were eventually able to place handcuffs and leg restraints on him and put him in a wheelchair because he refused to walk.

Almond testified that after defendant was extracted, Mansfield was lying on the floor of the cell. Almond did not observe Mansfield breathe or make voluntary movements. Oliver also testified that he did not see Mansfield make any voluntary movements and appeared "fully unresponsive." Oliver stated that Mansfield "was laying facedown ... [a]s [correctional officers] turned him over and placed him on the backboard ... it appeared that he had skin that-the skin appeared to be burned somehow. It was peeling off of his face, shoulder, hands. His-he was covered in blood. It even appeared as if his face was somewhat deformed, like disfigured." Another correctional officer involved in the extraction, Hector Ortega, stated that efforts to resuscitate Mansfield with an automated electric device (AED) were unsuccessful. Medical personnel determined Mansfield did not have a pulse and was not breathing. Medical personnel were having trouble getting the AED properly applied to Mansfield's chest because there was so much blood that it would slide off his skin. They instead began chest compressions as they transported him to the medical clinic but were unsuccessful. Attending paramedics pronounced him deceased. Almond stated he was shocked and surprised at the condition of the cell and extent of the violence, and the cell "had so much blood inside . . . that it would be difficult to go in there without it actually being on your person."

Almond testified that defendant looked unrecognizable because of the amount of blood he had on his body. He accompanied defendant to the medical clinic and stated that defendant continued to act belligerent there, cursing at the medical team.

Mansfield was also brought to the medical clinic. Almond observed that he did not seem responsive. Oliver also observed Mansfield at the medical clinic and believed he appeared to be deceased.

Forensic pathologist Dr. Robert Whitmore testified that he performed an autopsy of Mansfield. He determined his cause of death was strangulation with blunt force head...