People v. Gayanich, A113729 (Cal. App. 4/27/2007)

• Decision Date: 27 April 2007
• Docket Number: A113729
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff Respondent, v. DAVID J. GAYANICH, Defendant and Appellant.

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THE PEOPLE, PlaintiffRespondent, v.DAVID J. GAYANICH, Defendant and Appellant.

A113729

Court of Appeals of California, First Appellate District, Division One

April 27, 2007

NOT TO BE PUBLISHED

Appeal from the MarinCounty Super. Ct.No. SC135862A.

SWAGER, J.

Defendant was convicted following a jury trial of possession of a weapon while in custody (Pen. Code, § 4502, subd. (a)).The trial court found that defendant suffered prior convictions and served three prior prison terms.He was sentenced to an aggregate term of seven years in state prison.In this appeal he claims that the trial court erred by admitting evidence of an uncharged violation of county jail disciplinary regulations, and violated his due process and jury trial rights under Blakely v. Washington(2004)542 U.S. 296, by imposing an upper term.We conclude that the court did not err by admitting the uncharged acts evidence, and no prejudicial sentencing error occurred.We therefore affirm the judgment.

STATEMENT OF FACTS

Defendant began his incarceration as an inmate in San Quentin State Prison on March 23, 2004.He received a "CDC 115" rules violation report for a "physical fight" with another inmate on April 17, 2004.He was thereafter assigned to the Donner Section of the Administrative Segregation Housing Unit of the prison used for prisoners who have sustained a "rule violation."

Defendant was the sole occupant of cell No. 3D23, assigned to the lower bunk as of April 17, 2004.¹Another inmate occupied cell No. 3D23 before defendant, but vacated the cell on an unknown date.Prison rules required a "thorough search" of the cell after it was vacated by the previous occupant, and preparation of a 114A report that confirmed the cell was "clean" and functioning before it was assigned to another prisoner.The cell was vacant the day before defendant began to occupy it.

On the morning of April 29, 2004, correctional officer Jeffery Gill handcuffed and removed defendant from his cell for a "security escort" to an administrative hearing.Defendant was the "only individual" in the cell.He"appeared very nervous" to Officer Gill "during the escort down the stairs."Officer Gill then searched cell No. 3D23.In plain view on the top bunk of the cell he found an "inmate manufactured weapon" wrapped in thin, green paper.He described the weapon as a "state issued toothbrush" with a sharp "arrowhead shaped" piece of metal security screening "melted onto" the end of it.Two "contraband" lighters were also found "directly next" to the weapon on the bunk.A "section of security screening," which Officer Gill concluded had been added to the tip of the weapon, was missing from the door of defendant's cell.

The uncharged act occurred on October 1, 2005, while defendant was incarcerated in Marin County Jail awaiting trial.He was "housed by himself" in a single cell.At 8:45 a.m., Deputy Sheriff Robert McBlair conducted a routine search of defendant's cell.On the bookshelf above the desk the deputy discovered paper clips, one of which had been "sharpened at both ends."Deputy McBlair testified that the paper clips are contraband, as they"can be made into weapons" or "used to escape."He therefore seized the paper clips and wrote a "disciplinary report" on the incident.

DISCUSSION

I.The Admission of Evidence of an Uncharged Criminal Act

Defendant argues that the trial court erred by admitting evidence of his "subsequent possession of a sharpened paper clip while in the Marin County Jail" to prove "knowledge and absence of mistake."He claims that the offense of possession of a weapon while in custody is a "general intent crime," so "it was not necessary for the prosecution to prove any specific intent as to which knowledge would have been relevant."He also maintains that the defense did not claim "the weapon in his San Quentin prison cell was possessed or had been placed there by mistake."Therefore, neither his knowledge nor absence of mistake was at issue in the case, and the evidence of his "subsequent, uncharged conduct was essentially equivalent to disposition and propensity evidence otherwise proscribed by Evidence Code section 1101, subdivision (a)."Defendant acknowledges that the jury was given an instruction to consider the "evidence . . . of a sharpened paper clip" only for the "limited purpose" of "showing prior knowledge or absence of mistake," but insists the instruction "did not obviate the error," and instead only reinforced to the jury "that he was disposed to possess weapons while incarcerated."

"The rules governing the admissibility of evidence of other crimes are familiar and well settled.Evidence Code section 1101, subdivision (b) provides in pertinent part that evidence of other crimes is admissible `when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.'"(People v. Gray(2005)37 Cal.4th 168, 202;see alsoPeople v. Jablonski(2006)37 Cal.4th 774, 822-823;People v. Catlin(2001)26 Cal.4th 81, 111;People v. Diaz(1992)3 Cal.4th 495, 561;People v. Branch(2001)91 Cal.App.4th 274, 280;People v. Van Winkle(1999)75 Cal.App.4th 133, 140.)" `The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352.[Citations.]'[Citations.]"(People v. Brown(1993)17 Cal.App.4th 1389, 1395;see alsoPeople v. Carpenter(1997)15 Cal.4th 312, 378-379.)"Because this type of evidence can be so damaging, `[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.'[Citation.]"(People v. Daniels(1991)52 Cal.3d 815, 856;see alsoPeople v. Gray, supra, at p. 202;People v. Hawkins(1995)10 Cal.4th 920, 951;People v. Johnson(1991)233 Cal.App.3d 425, 443-444.)

"We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101and352."(People v. Cole(2004)33 Cal.4th 1158, 1195)"`A court abuses its discretion when its ruling "falls outside the bounds of reason."'[Citation.]"(People v. Catlin, supra,26 Cal.4th 81, 122.)

A.The Materiality of the Evidence

We first look at the probative value of the evidence that after his arrest defendant possessed contraband paper clips in county jail, one of which had been sharpened.As with other forms of circumstantial evidence, "the admissibility of other-crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence.[Citation.]In order to be material, the fact in dispute `may be either an ultimate fact in the proceeding or an intermediate fact "from which such ultimate fact[] may be . . . inferred."'[Citation.]"(People v. Catlin, supra,26 Cal.4th at 81, 146;see alsoPeople v. Robbins(1988)45 Cal.3d 867, 879;People v. Thompson(1980)27 Cal.3d 303, 315.)To be admissible, evidence of an uncharged offense must tend logically, naturally and by reasonable inference to establish any fact material to the People's case, or to overcome any matter sought to be proved by the defense.(People v. Robbins, supra, at p. 879;see alsoPeople v. Catlin, supra, at p. 146;People v. Carter(1993)19 Cal.App.4th 1236, 1246.)

Evidence of defendant's subsequent possession of the sharpened paper clip while incarcerated was admitted for the proper and limited purpose of proving that he acted with the requisite knowledge of his possession of the weapon.(SeePeople v. Thornton(2000)85 Cal.App.4th 44, 49-50;People v. Ellers(1980)108 Cal.App.3d 943, 953.)The absence of a specific intent requirement to prove a violation of Penal Code section 4502 did not remove the issue of knowledge from dispute or consideration in the case."Section 4502 provides in pertinent part: `Every person confined in a state prison or who, . . . while under the custody of prison officials, officers or employees, possesses or carries upon his person or has under his custody or control any . . . sharp instrument, . . . is guilty of a felony. . . .'In order to show a violation of this statute, the prosecution need not prove the intent or purpose for which the prohibited instrument was possessed.[Citation.]It must, however, prove that the defendant knew the prohibited object was in his possession."(People v. Reynolds(1988)205 Cal.App.3d 776, 779;see alsoPeople v. Evans(1969)2 Cal.App.3d 877, 881.)Beyond merely the general intent to do the prohibited act, the crime requires proof of the defendant's "knowledge of actual or constructive possession" of the weapon while confined in state prison.(People v. Strunk(1995)31 Cal.App.4th 265, 272;see alsoPeople v. Jurado(1972)25 Cal.App.3d 1027, 1030-1031.)Knowledge that the possession is illegal is unnecessary, but knowledge of the presence and character of the object possessed is an essential element of the offense.(SeeIn re Jorge M.(2000)23 Cal.4th 866, 877;People v. Taylor(2001)93 Cal.App.4th 933, 939-940;People v. Westlund(2001)87 Cal.App.4th 652, 657-658;People v. Strunk, supra, at p. 272.)

The knowledge element of the charged offense was of course placed in issue by defendant's not guilty plea.(SeePeople v. Catlin, supra,26 Cal.4th 81, 146;People v. Balcom(1994)7 Cal.4th 414, 422.)A fact like defendant's intent or knowledge "`generally becomes "disputed" when it is raised by a plea of not guilty or a denial of an allegation. . . .Such a fact remains "disputed" until it is resolved.'...