People v. Wims

• Decision Date: 05 June 1995
• Docket Number: No. S036641,S036641
• Citation: 41 Cal.Rptr.2d 241,10 Cal.4th 293,895 P.2d 77
• Parties: , 895 P.2d 77 The PEOPLE, Plaintiff and Respondent, v. Clifton C. WIMS et al., Defendants and Appellants.
• Court: California Supreme Court

Page 241

41 Cal.Rptr.2d 241

10 Cal.4th 293, 895 P.2d 77

The PEOPLE, Plaintiff and Respondent, v. Clifton C. WIMS et al., Defendants and Appellants.

No. S036641.

Supreme Court of California,

In Bank.

June 5, 1995.

Jeremy Friedlander, Office of Atty. Gen., San Francisco, for respondent.

Susan D. Shors, San Francisco, for appellant Wims.

Eric Multhaup, San Francisco, for appellant Ford.

WERDEGAR, Justice.

In this case we decide what standard a reviewing court must apply when deciding whether a trial judge's failure to instruct the jury as to the factual elements necessary to support a sentence enhancement for use of a deadly and dangerous weapon, under Penal Code section 12022, subdivision (b), ¹ is prejudicial. Section 12022(b) imposes an additional term of one year upon "any person who personally uses a deadly or dangerous weapon in the commission or attempted commission of a felony." ² We conclude that failure to instruct the jury as to all of the elements of section 12022(b) is prejudicial only where it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Applying that standard, we further conclude the trial court's error in this case was not prejudicial as to either defendant Clifton C. Wims or as to defendant Wilbert Ford. Accordingly, we reverse the judgment of the Court of Appeal insofar as it vacated the trial court's imposition, under section 12022(b), of one-year sentence enhancements for Wims's and Ford's use of a deadly or dangerous weapon. In all other respects, we affirm.

Facts

On the evening of November 12, 1991, Paige D'Agostino and his fiancee Elizabeth Gebhardt were walking home from the Powell Street BART (Bay Area Rapid Transit) station in San Francisco when they noticed defendant Wims and a woman involved in an altercation. Someone asked D'Agostino and Gebhardt for spare change, and they said they had none. Suddenly, Ford grabbed D'Agostino around the neck from behind and pulled him backward. Wims hit D'Agostino twice in the head with a crutch and then struck him in the face and chest with his fists. Ford then swung D'Agostino into the crosswalk, where he landed on his knees. Ford and Wims began pulling on D'Agostino's black leather jacket. Codefendant Carolyn Gipson ³ pushed Gebhardt and hit her in the head. Ford continued to pull on D'Agostino's jacket and then held a knife eight inches from his face and threatened to "cut [him] up" if he didn't let go of the jacket. D'Agostino and Gebhardt continued walking. D'Agostino was bleeding profusely from his nose, mouth and cheek. Tom McCoy, a passing motorist and off-duty security guard, spoke with D'Agostino and Gebhardt and contacted the police.

According to Gebhardt, as Wims hit D'Agostino with the crutch, Ford held him and said, "Give us your money." After Wims beat D'Agostino with the crutch, he threw it down, and Gebhardt saw him holding a knife. Gipson displayed another knife and threatened Gebhardt with it. Gebhardt testified Ford also had a knife, but on cross-examination acknowledged she had told police she was not sure if either Ford or Wims had a knife, since she had been concerned about Gipson's knife. After the incident, Gebhardt accompanied police to the scene and identified Wims, Ford and Gipson as the perpetrators. As police approached, Wims threw down a set of keys identified by Gebhardt as belonging to her and D'Agostino. Ford and Wims each possessed a knife when arrested.

McCoy, the passing motorist, testified he saw Wims hitting a White man and Ford pulling at the man's jacket. McCoy also testified both Wims and Ford were holding knives. He acknowledged, however, he had told police about only one knife. He had not mentioned a second knife because he had not specifically been asked about a second knife.

Finally, Gipson, testifying in her own defense, stated she first saw Ford, and then Wims, with a knife.

Defendants Wims, Ford and Gipson were each charged by information with second degree robbery (against D'Agostino) (§ 212.5, subd. (b)) and assault with a deadly weapon and by means of force likely to produce great bodily injury (against Gebhardt) (§ 245, subd. (a)(1)). In connection with the robbery count, it was further alleged that "in the commission and attempted commission of the above offense, the defendants, WILBERT FORD, CAROLYN JEAN GIPSON, and CLIFTON C. WIMS, personally used a deadly and dangerous weapon, to wit, KNIFE, said use not being an element of the above offense within the meaning of Penal Code section 12022(b)."

Wims was also charged, in the alternative to the robbery charge, with receiving stolen property, i.e., Gebhardt's keys. Ford was alleged to have suffered two prior serious felony convictions (both robberies, one in Missouri and one in California).

The charges against defendants Ford, Wims and Gipson were tried to a jury. After the People rested, the court granted motions to dismiss the assault charge as to Ford and Wims.

After evidence had been presented, the court instructed the jury on general matters, elements of the charged offenses, and lesser included offenses. The court did not specifically instruct the jury on the elements of a section 12022(b) enhancement. The court did instruct the jury on aiding and abetting liability.

In closing argument, the prosecutor noted the robbery count in the information "also has a knife allegation, each of them used a knife while in the commission of this crime." She also reviewed some of the evidence dealing with knife use:

"Underneath the robbery charge [on the verdict forms] as I mentioned there is a knife allegation. It's alleged that each of these three defendant[ ]s used a knife in the commission of the robbery.... I think you will agree that there was testimony that defendant Ford had a knife. In fact, there's a knife that was taken from him that evening and booked and it's the knife that was marked as People's 5B, the knife identified as being similar to what they saw defendant Ford have in his possession that night.

"With respect to defendant Wims ... [Gebhardt] stated that defendant Gipson had a long knife which is consistent with [People's exhibit 5C], but she also stated that defendant Wims had a knife as did Mr. McCoy [the passing motorist]. This [People's exhibit 5C], however, is the knife that was taken from the back of defendant Wims' pocket when he was arrested for this charge. So far while we have two knives and not three, you may be asking yourself; well ... where's the third knife? Well, unfortunately I don't know where the third knife is. Maybe she does. However, I don't. But, in any event, Elizabeth Gebhardt clearly ... saw a knife being waved in front of her face and [heard] defendant Gipson saying, "Let go of the jacket or I'll cut you.... So the knife allegation is as to all three and I think the evidence suggests it."

In closing argument, Ford's defense counsel acknowledged D'Agostino was assaulted and did not dispute the evidence that D'Agostino's attacker (Ford, according to the prosecution) used a knife. Ford's counsel argued only that Ford was misidentified and was not one of the robbers. He conceded Ford had a knife when arrested, but contended that circumstance did not prove Ford was involved in the robbery. He said Gebhardt's identification of Ford was unreliable, because previously Gebhardt told police she was not completely sure if she saw one knife or two and because she was focusing on the knife being held at D'Agostino's throat, not on the person who was holding it. D'Agostino's identification of Ford was also flawed, said Ford's counsel, because D'Agostino would have been focusing on the knife rather than the knife holder.

Wims's counsel argued that Wims was "probably guilty of some other things, but he is not guilty of robbery," because he lacked the intent to take property. He said: "Clearly he jumped into the assault. You know, Mr. Wims is no boyscout. What you see in evidence is definitely not a boyscout knife."

As the People concede, the trial court did not instruct the jury on the elements of section 12022(b) except in reviewing the verdict forms. The court said: "If and when you reach a verdict as to [the robbery] count, then your foreperson is to fill in the appropriate word, guilty or not guilty, date it and sign it. This instruction has a further requirement on you [sic ]. 'We further find that the use of the deadly weapon allegation, violation of Penal Code section 12022(b) to be,' there's another blank, 'true or not true.' And when you reach a verdict as to this particular allegation, then your foreperson is to write in the correct true or not true, date it and sign it. And this is the same as to each of the three defendant[ ]s."

During deliberations, the jury inquired in writing of the court whether a crutch constitutes a deadly weapon. The court answered that "it could under some circumstances. However, there's no allegation here against Mr. Wims regarding the use of a deadly weapon, to wit, a crutch.... [p] He is charged with using a deadly weapon in the commission of a robbery. However, by the terms of the pleadings it's limited to the knife. [p] So whether or not a crutch is a deadly weapon or not, is really irrelevant...."

The jury also asked for "[a] copy of/or reading of Mr. D'Agostino's and Mr. McCoy's testimony regarding the presence/display or lack of presence/display of a knife during the incident by Mr. Wims." The court responded: "My court reporter has gone through the entire transcripts of the proceedings, finds no reference to any questions asked of Mr. D'Agostino one way or the other as to whether or not Mr. Wims had a knife, displayed a knife, any--there is one reference in Mr. McCoy's testimony which she's prepared to read to you at this time." The court then stated the court reporter would print a portion of the transcribed...