People v. King
| Decision Date | 24 October 2017 |
| Docket Number | B271924 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. WILLIAM KENNETH KING, JR., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
Los Angeles County Super. Ct. No. BA436801
APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed in part, reversed in part, and remanded with directions.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant William Kenneth King, Jr. appeals from the judgment entered after a jury convicted him of attempting to bomb a hospital with a Molotov cocktail. Appellate counsel filed an opening brief in which he raised no issues (People v. Wende (1979) 25 Cal.3d 436), and we requested briefing on several issues related to defendant's alleged strike prior. Defendant now contends that there is insufficient evidence his prior conviction was a strike offense and that the trial court's resolution of that question violated his Sixth Amendment right to a jury trial. The People concede the former point but dispute the latter.
We conclude there is insufficient evidence to prove that defendant's prior conviction—for evading a police officer causing injury—is a strike, because neither the elements of the crime nor the evidence presented established that defendant personally inflicted great bodily injury on a non-accomplice. We also conclude the case must be remanded for further proceedings to determine what evidence, if any, the prosecution will produce to prove that fact. Accordingly, we reverse the findings on the strike allegation and remand for a new priors trial. In all other respects, we affirm.
On May 15, 2015, at approximately 8:00 p.m., nurse Krishinda Smith was working in the emergency department at California Hospital in Los Angeles. Defendant entered the emergency room. When the triage nurse failed to see him quickly enough, he grew upset and yelled at Smith using offensive language. Smith called security. Hospital security guard Chris Borquez responded and escorted defendant outside. Defendanttold Borquez he was going to come back and blow up the hospital. Surveillance cameras captured video of the encounter, but no sound.
Defendant returned to the hospital 30 to 60 minutes later. He stood on the sidewalk outside the emergency room door, reached into a brown paper bag, and removed an item Borquez believed was a Molotov cocktail.1 The paper bag fell to the ground. Defendant was holding a glass bottle with a protruding rag. According to security guard Christopher Maldonado, defendant said, "I'm going to blow this place up." As he held the bottle in his left hand, he attempted to light the rag with a lighter held in his right hand. When the lighter malfunctioned, defendant ran away, dropping the rag as he fled. After defendant left, the guards found the paper bag and the rag on the sidewalk.
An arson investigator collected the bag and the rag and sent them for analysis. The rag was noticeably wet and had an odor consistent with a petroleum product like gasoline. Analysis of both objects revealed the presence of an ignitable liquid described as a medium petroleum distillate. The liquid had a flashpoint of 114 degrees.
By information filed July 9, 2015, defendant was charged with one count of use or attempted use of an explosive device (Pen. Code, § 18740; count 1), one count of attempt to burn (Pen. Code, § 455; count 2), and one count of criminal threats (Pen. Code, § 422, subd. (a); count 3). The information also alleged that defendant had previously been convicted of violating Vehicle Code section 2800.3, and that the conviction was a serious or violent felony under the Three Strikes law. (Pen. Code, §§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d).) Defendant pled not guilty and denied the allegation.
After a bifurcated trial at which he did not testify, defendant was convicted of all counts. During deliberations, the jury asked for guidance in reaching a unanimous decision on counts 1 and 2. The record does not indicate that the court consulted counsel before replying that the jury should continue deliberating. Ultimately, after deliberating for five-and-a-half hours over three days, the jury reached a decision on the substantive counts. Following the verdicts on the substantive charges, jury trial began for the strike allegation.
At the priors trial, the prosecution relied on three exhibits. To prove the existence and nature of the prior conviction, the prosecution presented certified minute orders from case no. KA043325.2 According to the minute order of April 13, 1999, the defendant in case no. KA043325 was "advised of and personally and explicitly waive[d]" his constitutional trial rights. As relevant here, it also established that the defendant pled nocontest to evading a peace officer with great bodily injury (Veh. Code, § 2800.3, subd. (a)).
The prosecution presented two additional exhibits to prove that defendant was the person who had been convicted in case no. KA043325. Exhibit 6 was defendant's booking photograph from his June 14, 2015, arrest in this case. Exhibit 7 was a partially-redacted printout from the California Law Enforcement Telecommunications System (CLETS), which reported criminal history information relating to an individual alternatively identified as William King Jr., William Kenneth King, William King, William Kenneth King Jr., and Rey Guillermo. The printout, which also contained four different social security numbers, warned: The report noted that in the 1999 case, defendant had been arrested by the Sheriff's Department, but the sheriff had not transmitted the arrest data to the Department of Justice.3 A paralegal from the District Attorney's Office testified that the Department of Justice typically entered information into CLETS based on superior court minute orders.
At the end of the paralegal's testimony, the defense argued that while there was evidence that defendant was the person inthe CLETS report, and while the 1999 conviction appeared in the report, there was no evidence that the Department of Justice had attached the 1999 conviction to the correct person. Since the prosecution did not present any photographs, fingerprints, or other evidence to establish the identity of the person convicted in the 1999 case, and since the minute orders in that case did not contain defendant's unique CII number, there was no way to tell whether defendant was indeed that person. Accordingly, the defense moved to dismiss the alleged prior.
The court concluded the prosecution had established defendant's identity beyond a reasonable doubt. (Pen. Code, § 1025, subd. (c).) Referring to the warning in the CLETS report, the court noted, (Sic.)4
Next, the jury was instructed that the court had concluded defendant was the person named in exhibits 6-8, and was told to determine whether he had been convicted of violating Vehicle Code section 2800.3 on April 13, 1999, in case no. KA043325. The jury found the allegation that defendant was convicted of "evading a police officer, ... causing serious bodily injury" in theprior case true. It was not instructed to determine—and did not determine—whether defendant personally inflicted great bodily injury on a non-accomplice in the commission of that offense.
At sentencing, the court held that "the strike conduct is a driving offense for which somebody was seriously injured so that's a strike." The court denied defendant's motion to strike the prior, denied the defense motion for a new trial, and sentenced defendant to an aggregate term of 15 years and four months in state prison.
The court selected count 1 (Pen. Code, § 18740) as the base term and sentenced defendant to 14 years—the upper term of seven years, doubled for the strike prior. The court imposed 16 months for count 3 (Pen. Code, § 422, subd. (a))—one-third the middle term of two years, doubled for the strike prior—to run consecutively. The court stayed count 2 (Pen. Code, § 455) under Penal Code section 654. Finally, the court recommended that the Department of Corrections and Rehabilitation house defendant in a mental health facility.
Defendant filed a timely notice of appeal and we appointed counsel to represent him. On June 14, 2016, appointed counsel filed a brief in which he raised no issues and asked us to review the record independently. (People v. Wende, supra, 25 Cal.3d at p. 443.)
After reviewing the record, the superior court file, and the exhibits, we asked appellate counsel and the People to provide us with supplemental briefing on several issues related to defendant's prior conviction: Was the evidence sufficient to establish that the prior conviction qualified as a strike offense? Under the...
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