People v. Grandberry

• Court: California Court of Appeals
• Writing for the Court: Sanchez, J.
• Citation: People v. Grandberry, 35 Cal.App.5th 599, 247 Cal.Rptr.3d 258 (Cal. App. 2019)
• Decision Date: 21 May 2019
• Docket Number: A152188
• Parties: The PEOPLE, Plaintiff and Respondent, v. Henry Lee GRANDBERRY, Defendants and Appellants.

35 Cal.App.5th 599

247 Cal.Rptr.3d 258

The PEOPLE, Plaintiff and Respondent,

v.Henry Lee GRANDBERRY, Defendants and Appellants.

A152188

Court of Appeal, First District, Division 1, California.

Filed May 21, 2019

Randy Baker, under appointment of the Court of Appeal under the First District Appellate Project, Independent Case System, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attorneys General, for Plaintiff and Respondent.

Sanchez, J.

After a jury trial, appellant Henry Lee Grandberry was found guilty of unlawful possession of a dirk or dagger while confined in state prison. ( Pen. Code,¹ § 4502, subd. (a).) On appeal, Grandberry contends the trial court erred in instructing the jury—pursuant to CALCRIM No. 361 —that it could draw an unfavorable inference from his failure to explain or deny incriminating evidence at trial. According to Grandberry, the instruction was improper because he did explain or deny all of the evidence against him and because the form instruction violated his due process rights by unreasonably favoring the prosecution. We reject Grandberry's constitutional argument and, concluding the instruction was appropriate given the evidence adduced at trial, we affirm.

I. BACKGROUND

On January 13, 2017, the Del Norte County District Attorney filed an information charging Grandberry with a single felony count of unlawful possession of a dirk or dagger while confined in state prison. ( § 4502, subd. (a).) The information further alleged two prior strike offenses (§§ 667, subds. (b)-(i), 1170.12)—a 1996 conviction for first degree murder (§ 187, subd. (a)) and a 1988 conviction for second degree robbery (§ 211). An additional special allegation claimed Grandberry had served a prior prison term within the meaning of section 667.5, subdivision (b).

Jury trial commenced on April 10, 2017. At trial, the prosecution presented evidence regarding a random search conducted by correctional officers on October 27, 2015, in section B on the A yard of Building 7 at Pelican Bay State Prison. At the time of the raid, most of the inmates from B section were in the dayroom having recreational time. Those inmates who chose not to participate in dayroom, like Grandberry, remained locked in their cells. While the majority of the correctional officers went to the dayroom, instructing the inmates there to lie prone on the ground until they could be searched, other officers simultaneously reported to the cells of those inmates who had elected to remain behind. Prison staff members were instructed to have the doors of the occupied cells open by the time the correctional officers arrived.

Officers Acosta and Miller went to Grandberry's cell. Grandberry was ordered to lie prone on his cell floor for safety reasons. Officer Miller entered the cell through the open door and made a cursory inspection to ensure there were no weapons within Grandberry's reach. The officers then escorted Grandberry to the empty dayroom in A section and conducted an unclothed body search of the inmate. Grandberry was instructed to take off all his clothes and place them on a table so that Officer Acosta could conduct a thorough search. As he was searching the clothing, Officer Acosta noticed Grandberry's boxer shorts were particularly thick. Although visually they looked like one pair, Officer Acosta discovered they were actually two pairs sewn together, with a solid object nested between them in the front center. The object was a manufactured weapon—a four and one-half inch piece of plastic sharpened on one end, with a homemade sheath protecting the wearer from the sharp point. Officer Acosta had seen such weapons used to cause great bodily injury and even death.

Not wanting to agitate Grandberry or possibly cause a confrontation, Officer Acosta did not announce he had found a weapon. Instead, he placed the weapon and underwear in his pocket and allowed Grandberry to get dressed in his remaining clothing. He did not tell Officer Miller about the weapon directly, but instead looked at him in a certain way which indicated he had discovered something. Officer Miller testified he understood from Officer Acosta's actions that contraband had been found. The officers then handcuffed Grandberry and placed him in a holding cell until he could be processed into administrative segregation due to the weapons offense.

On November 5, 2015, at a classification hearing regarding his recent placement in administrative segregation, Grandberry reportedly stated: "I know I messed up and everything. I was stupid and being a bozo. I screwed up." The correctional case worker who recorded the proceedings and testified at trial remembered the comment because it was "not that common that an inmate will be so apologetic during committee." For the same reason, she included the quote in the report for the hearing—the classification review—which was entered into evidence at trial. A shorter document memorializing the hearing—the classification chrono—was also admitted into evidence. The classification chrono, which is provided to inmates for appeal purposes, did not contain the above-quoted implied admission. Instead, it simply stated: "[Subject] expressed his understanding of the basis of the [Institutional Classification Committee (ICC) ] action and agreed with the action."

In his defense at trial, Grandberry offered the testimony of three inmates whose description of the events paralleled statements they provided to an investigator in October 2016. Inmates Thorton and Dabney testified that, on the day of the raid, officers commanded Grandberry to strip out in his cell, taking his clothes through the tray slot in his closed cell door and searching them, including a pair of boxer shorts. The officers returned the clothes back through the slot and allowed Grandberry to put them back on before walking him into section A. Inmate Williams testified that, on the day of the raid, he saw Grandberry strip-searched in front of his cell in section A, but did not see the officers find a weapon.

Grandberry also testified on his own behalf, claiming that he was wearing only a single pair of boxer shorts when he was searched by correctional officers in October 2015 and that he did not have any weapon in his pants. He denied that the boxer shorts and weapon in evidence were his. He denied making the statement at the classification hearing that he "screwed up" and was "being a bozo" and stated he had not been provided a copy of the classification review which contained the statement. Grandberry claimed if he had seen that statement ascribed to him he would have appealed it, explaining that he was familiar with the process of filing an inmate appeal and had done so previously. He admitted that he received the classification chrono and agreed it was accurate.

On April 11, 2017, a jury found Grandberry guilty as charged. Grandberry admitted the strikes and prison prior, but the trial court subsequently allowed him to withdraw his admission to the 1996 strike due to an incorrect admonition as to its consequences. At sentencing on August 10, 2017, the trial court sentenced Grandberry to a total prison term of nine years, to run consecutively to his current sentence of 84 years to life. This timely appeal followed.

II. DISCUSSION

Grandberry contends that the trial court erred in instructing the jury that it could draw an adverse inference from his failure to deny or explain evidence against him, because there was no incriminating evidence at trial which he failed to explain or deny. He further argues the instruction violated his due process rights because it unfairly advantaged the prosecution. Assertions of instructional error in this context are reviewed de novo. ( People v. Vega (2015) 236 Cal.App.4th 484, 495, 186 Cal.Rptr.3d 671 ( Vega ); People v. Lamer (2003) 110 Cal.App.4th 1463, 1469, 2 Cal.Rptr.3d 875 ( Lamer ).)

A. Claim of Forfeiture

We first address the Attorney General's contention that Grandberry's claims of error are forfeited because defense counsel failed to object to CALCRIM No. 361 at trial. Generally speaking, a "failure to object does not waive an instructional error on appeal if the instruction was an incorrect statement of law or the defendant's substantial rights were affected." ( Vega , supra , 236 Cal.App.4th at p. 495, 186 Cal.Rptr.3d 671 ; see § 1259.) Grandberry asserts that the challenged instruction denied him a fair trial in violation of his constitutional right to due process of law, arguably a claim that the instruction was an "incorrect statement of law" affecting his substantial rights. Moreover, when determining whether a challenged instruction affected a defendant's substantial rights, cases generally equate substantial rights with reversible error, thereby requiring "an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." ( People v. Andersen (1994) 26 Cal.App.4th 1241, 1249, 32 Cal.Rptr.2d 442 ; see People v. Lawrence (2009) 177 Cal.App.4th 547, 553, fn.11, 99 Cal.Rptr.3d 324.) Under these circumstances, we will reach the merits of Grandberry's arguments.

In doing so, we decline to adopt the Attorney General's position that, given the wording of CALCRIM No. 361, a defendant's substantial rights can never be violated because a jury can disregard the instruction where it is not responsive to the evidence at trial. It is true CALCRIM No. 361, by its terms, only comes into play if the jury finds evidence making it applicable—that is, if there is some incriminating evidence in the record that a testifying defendant has not explained or denied. Moreover, juries are generally instructed, in accordance with CALCRIM No. 200, to ignore any inapplicable instructions, as the jury was in this case: "Some of these instructions may not apply,...