Filed 1/22/20 P. v. Vandebrake CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DARRELL WAYNE VANDEBRAKE,

Defendant and Appellant.

G056574

(Super. Ct. No. 16WF2148)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Elizabeth G. Macias, Judge. Affirmed as modified.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Darrell Wayne Vandebrake of assaulting T.H. with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), and the offense of attempted criminal threats (§§ 664, 422, subd. (a); count 2), based on an incident occurring on September 18, 2016. The jury found defendant personally used a deadly weapon, a knife, in the commission of these offenses. (§ 12022, subd. (b)(1).) Defendant was also convicted of stalking T.H. on or about and between July 16, 2016 and September 18, 2016 (§ 646.9, subd. (a); count 3), and committing misdemeanor assault (§ 240; count 4) and battery (§ 242; count 5) on July 16, 2016. The court imposed a three-year prison term on count 1. An additional year for the weapon enhancement was imposed but stayed under section 654. As to count 2, the court imposed and stayed the midterm for the offense and one year for the weapon enhancement. A concurrent two-year term was imposed on count 3, and the court imposed and stayed one-year terms on counts 4 and 5.

Defendant raises three issues on appeal. First, he contends the deadly weapon enhancements on counts 1 and 2 must be stricken because the court failed to instruct the jury on the enhancements with CALCRIM No. 3145. While we agree the court erred, we conclude the error was harmless beyond a reasonable doubt, considering the evidence, the parties’ arguments to the jury, other instructions given the jury, and the jury’s verdicts. Nevertheless, we strike the enhancement for personal use of a deadly weapon on count 1 as we agree with the parties that the enhancement was improperly imposed on defendant’s conviction for assault with a deadly weapon. Last, defendant asserts and the Attorney General concedes his 233 days of excess presentence custody credits should be applied to his parole term. We agree. We also modify the judgment to reflect a parole revocation fine (§ 1202.45) in the amount of $500 and direct the trial court to prepare an amended abstract of judgment consistent with this opinion.

FACTS

In the summer of 2016, T.H. went almost daily to Magnolia Park in Garden Grove to exercise. During her visits, she befriended defendant, who was homeless. Their interactions were cordial for several months and included eating together and defendant giving her $400 for her rent. Defendant told T.H. that he loved her and wanted her to be his girlfriend or wife. This made her uncomfortable, and she told defendant she did not want to talk about such things. When defendant persisted with his romantic overtures during her visits to the park, T.H. told defendant to leave her alone and walked away from him.

Defendant eventually turned hostile toward T.H.; he called her names and cussed at her. On July 16, 2016, she was exercising at a table in the park when defendant walked up behind her and pulled her bra strap. She told defendant he could not touch her and left this area of the park for a while. When she came back, defendant yelled at her, hit her hat, and punched her three times in her left shoulder blade. T.H. ran away, and a park maintenance worker called the police.

After this incident, T.H. continued to go to the park but tried to avoid defendant. On September 18, 2016, she parked her car near the park’s basketball courts. She was using an exercise machine when she heard someone cussing and saying something about parking. She looked up and saw defendant, standing about 25 feet away. He was shouting and called her a “bitch.” T.H. moved to a different machine further away from defendant. When she looked up again, she saw defendant holding a knife. He began walking toward her and made a slicing gesture with the knife, moving it across his neck. She heard him say “kill” and thought he might have said he was going to kill her as she ran away. She saw a city employee and asked for help. When the police arrived, they contacted defendant and recovered from him a kitchen knife with a five to six inch blade.

DISCUSSION

Deadly Weapon Enhancements

Defendant contends the court committed prejudicial error by failing to instruct the jury with CALCRIM No. 3145 concerning the enhancements for personal use of a deadly weapon (§ 12022, subd. (b)(1)) that were alleged as to the charges of assault with a deadly weapon in count 1 and making a criminal threat in count 2. He asserts the court’s failure to instruct the jury on these sentence enhancements violated his rights to due process and a jury trial as guaranteed by the United States Constitution. The Attorney General concedes the court had a sua sponte duty to instruct the jury with CALCRIM No. 3145 but argues the error was harmless. After reviewing the record, we agree the error was harmless beyond a reasonable doubt.

When a sentence enhancement is alleged, the court has a sua sponte duty to instruct the jury on its elements. (People v. Wims (1995) 10 Cal.4th 293, 303); Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Here, the court clearly erred by failing to instruct with CALCRIM No. 3145, which defines the elements of the enhancement for personal use of a deadly weapon. CALCRIM No. 3145 would have instructed the jury that “[a] deadly or dangerous weapon is any object, instrument, or weapon that is used in such a way that it is capable of causing and likely to cause death or great bodily injury” and “[s]omeone personally uses a deadly or dangerous weapon if he or she intentionally” “[d]isplays the weapon in a menacing manner.” (Brackets omitted.) The court’s failure to give this instruction was constitutional error and reversal of the deadly weapon enhancements is required under Chapman v. California (1967) 386 U.S. 18 “unless it can be shown ‘beyond a reasonable doubt’ that the error did not contribute to the jury’s verdict.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)

The jury found defendant “personally used a KNIFE, a dangerous and deadly weapon, in the commission of the” counts 1 and 2, “within the meaning of Section 12022(b)(1) of the Penal Code.” We conclude beyond a reasonable doubt that the court’s error did not contribute to the jury’s findings. We reach this conclusion based on other instructions given to the jury, the parties’ arguments to the jury, the evidence, and the jury’s verdicts.

Although the jury was not instructed with CALCRIM No. 3145, the jury was informed of the elements of the deadly weapon enhancement through other instructions and the prosecutor’s argument. The jury was properly instructed on the definition of a deadly weapon with CALCRIM No. 875, the instruction for the charge of assault with a deadly weapon, which told the jury that “[a] deadly weapon other than a firearm is any object, instrument, or weapon that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” The jury was informed also that the deadly weapon must be “intentionally displayed in a menacing manner . . . .” (People v. Wims, supra, 10 Cal.4th at p. 302.) In urging the jurors to find defendant personally used a deadly weapon in the commission of the offenses in counts 1 and 2, the prosecutor conveyed to the jury the omitted element by reading from CALCRIM No. 3145. The prosecutor explained, “Someone personally uses a deadly weapon, . . . deadly or dangerous weapon if he intentionally displays the weapon in a menacing manner.” The prosecutor then argued defendant was “personally using this knife” because he was “holding it in a dangerous or menacing manner” as he threatened T.H. Thus, much of the omitted instruction was covered by the court’s other instructions or the prosecutor’s argument. (See People v. Merritt (2017) 2 Cal.5th 819, 831-832 [where court omitted robbery instruction, other instructions given and the parties’ description of the offense’s elements in argument to the jury were factors considered in determining prejudice].)

Defendant acknowledges the jury was instructed on the definition of a deadly weapon in CALCRIM No. 875 but contends the omission of the third paragraph of CALCRIM No. 3145 was prejudicial error. This portion of CALCRIM No. 3145 states, “In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and where the person who possessed the object was going, and whether the object was changed from its standard form and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.” According to defendant, the omitted paragraph was necessary to tell the jury to consider the circumstantial evidence in determining whether he personally used a deadly weapon. We disagree. The jury was properly instructed on circumstantial evidence with CALCRIM Nos. 223 and 224. Defense counsel correlated circumstantial evidence with consideration of surrounding circumstances in her argument to the jury that defendant was not guilty of making a criminal threat, telling the jurors that circumstantial evidence goes “hand in hand” with consideration of surrounding circumstances. As this point was consistent with the court’s instructions, “the jury might well have considered these comments in its deliberations.” (People v. Merritt, supra, 2 Cal.5th at p. 831.) Although the court did not instruct the jury with CALCRIM No. 3145, the contents of this jury instruction were adequately conveyed to the jury.

Moreover at trial, the defense effectively conceded the elements of the deadly weapon enhancements, rendering the court’s failure to instruct with CALCRIM No. 3145 harmless. (See People v. Merritt, supra, 2 Cal.5th at p. 831 [“‘One situation in which instructional error removing an element of the crime from the jury’s consideration has been deemed harmless is where the defendant concedes or admits that element’”].) Here, the defense was focused on defending against the substantive charges in counts 1 and 2 and did not directly dispute that the knife was a deadly weapon or that defendant intentionally displayed it in a menacing manner. Indeed, in addressing the assault with a deadly weapon charge, defense counsel conceded defendant brandished or displayed the knife but asserted he did not have the present ability to use it.

On appeal, defendant again focuses on whether he had the present ability to assault T.H. with the knife, arguing that the surrounding circumstances “indicated that he did not have the present ability to use the knife against [her].” He also asserts the jury’s question requesting a definition of present ability “indicates that one or more jurors questioned whether [he] had the required ‘present ability to apply force with a deadly weapon other than a firearm to a person.’” But defendant misses the mark. Present ability to apply force is not an element of the deadly weapon enhancement under section 12022, subdivision (b)(1). It is an element of the substantive charge of assault with a deadly weapon. (CALCRIM No. 875.) By finding defendant guilty of that charge, the jury necessarily found he had the present ability to apply force with a deadly weapon. No reasonable jury could have found defendant guilty of the substantive offenses in counts 1 and 2 and failed to find true the deadly weapon enhancements.

The evidence defendant personally used a knife in the commission of the assault with a deadly weapon and the attempted criminal threat was uncontroverted. There was overwhelming evidence that defendant was angry with T.H. when he pulled out the knife and started walking toward her while making a threatening gesture and saying “kill.” Based on all these factors, we conclude beyond a reasonable doubt that the court’s failure to instruct the jury with CALCRIM No. 3145 was harmless.

Although we find harmless the court’s failure to instruct the jury on the deadly weapon enhancement, we nonetheless strike the enhancement on defendant’s conviction for assault with a deadly weapon in count 1. Section 12022, subdivision (b)(1), explicitly states that imposition of the enhancement is precluded where use of the weapon is an element of the underlying offense. Because defendant’s use of the knife was an element of his conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) in count 1, the deadly weapon enhancement on this count must be stricken. (People v. Landry (2016) 2 Cal.5th 52, 127-130; People v. McGee (1993) 15 Cal.App.4th 107, 110; People v. Summersville (1995) 34 Cal.App.4th 1062, 1070.)

Excess Custody Credits

At sentencing, the court imposed a state prison sentence of three years (1,095 days) and credited defendant with 1,328 days of presentence custody credits. Defendant argues and respondent concedes that defendant’s 233 days of excess presentence custody credits should be applied against his parole period. We agree. Section 2900.5 requires a defendant’s excess custody credits be applied to reduce his or her parole period and eligible fines. (In re Sosa (1980) 102 Cal.App.3d 1002, 1005-1006; In re Ballard (1981) 115 Cal.App.3d 647, 650.)

Section 2900.5 provides that when a defendant convicted of a felony or misdemeanor has been in custody, his or her days of custody “shall be credited” against the “term of imprisonment” or to “any base fine.” (Id., subd. (a).) Custody credits must first be applied to the “term of imprisonment” (ibid.), which the statute defines as including “any period of imprisonment and parole.” (Id., subd. (c).) Any credits remaining after the “entire term of imprisonment” has been served are credited against the base fine. (Id., subd. (a)). Thus, defendant’s 233 days of excess presentence custody credits “shall be credited” to his parole term. (Id., subd. (a).)

Concerning defendant’s parole period, we note the court erred by imposing a parole revocation fine (§ 1202.45, subd. (a)) in an amount different than the restitution fine imposed (§ 1202.4, subd. (b)). The court imposed a $500 restitution fine but only a $200 parole revocation fine, which remains suspended unless defendant’s parole is revoked. (§ 1202.45, subd. (c).) When the “sentence includes a period of parole,” the court must impose a parole revocation fine in an amount equal to the restitution fine. (§ 1202.45, subd. (a); People v. Smith (2001) 24 Cal.4th 849, 853.) The failure to do so is an error correctable on appeal despite the prosecution’s failure to object. (Smith, at p. 852.) Accordingly, we modify the judgment to reflect a $500 parole revocation fine, which remains suspended unless defendant’s parole is revoked, and we direct the trial court to prepare an amended abstract of judgment reflecting this modification.

DISPOSITION

The judgment is modified to reflect: (1) the enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)) on count 1 is stricken; and (2) a $500 parole revocation fine under section 1202.45. The trial court is directed to prepare and file an amended abstract of judgment with these modifications, and the amended abstract of judgment shall also reflect that defendant’s 233 days of excess presentence custody credits are to be applied to his parole period. The trial court is further directed to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.