P. v. Crane

1
Filed 4/10/07 P. v. Crane CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
GARRETT MORGAN CRANE,
Defendant and Appellant.
C050495
(Super. Ct. No. 050438)
A jury found defendant Garrett Crane guilty of receiving
stolen property and two misdemeanor counts of resisting a peace
officer. The jury also found defendant had numerous prior
convictions.
The trial court sentenced him to an aggregate term of seven
years in prison, which included the upper term of three years
for receiving stolen property, doubled as the result of a prior
strike. The trial court also sentenced him to time served in
jail on each count of resisting a peace officer, “concurrently
with each other” and “consecutive to the state prison sentence.”

-- 1 of 14 --

2
On appeal, defendant contends: (1) the evidence was
insufficient to support one of his convictions for resisting a
peace officer; (2) the trial court erred in failing to define
the term “great bodily injury” for the jury; (3) he was denied
effective assistance of counsel when his attorney failed to
object to certain remarks the prosecutor made during closing
argument; (4) the trial court’s imposition of the upper term
sentence for receiving stolen property violated his federal
constitutional right to a jury trial; and (5) the trial court
erred in failing to stay one of his sentences for resisting a
peace officer.
We will accept the People’s concession of error regarding
the trial court’s failure to stay one of the sentences for
resisting a peace officer and will modify defendant’s sentence
by staying the sentence on count four (the second count of
resisting a peace officer). We will also conclude the trial
court erred to the extent it relied on some aggravating
circumstances not found by the jury in imposing an upper term
sentence, but find the error harmless beyond a reasonable doubt
because the court undoubtedly would have imposed the upper term
even if it had not taken those circumstances into account.
Rejecting the remainder of defendant’s arguments, we will
affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The facts relating to defendant’s conviction for receiving
stolen property are not at issue and therefore we need not
recite them. For our purposes, it is sufficient to recite the

-- 2 of 14 --

3
following facts underlying defendant’s convictions for resisting
a peace officer.
Siskiyou County Sheriff’s Deputy Mack McDonald arrested
defendant and took him to jail. Once inside the receiving area,
defendant refused to comply with requests by Siskiyou County
Jail Correctional Officer M. Lamarr to remove his watch and
shoes and instead told Officer Lamarr, “How ‘bout you suck my
dick.” Officer Lamarr placed defendant in a compliance hold and
led him into a holding cell. Correctional Sergeant M. Barber
followed close behind. Defendant was placed on the floor and
his shoes were removed. As the two officers started to leave
the holding cell, defendant jumped up and moved quickly toward
them. Sergeant Barber and Deputy McDonald both drew their
Tazers and pointed them at defendant. Deputy McDonald told
defendant, who had reached the threshold of the cell or just
before it, several times to step back. He complied, and the
officers were able to close the door to the cell.
Defendant was charged with two counts of resisting a peace
officer -- one for Sergeant Barber and one for Officer Lamarr.
In closing argument, the prosecutor argued that defendant’s
refusal to comply with Officer Lamarr’s requests in the
receiving area and then his attempt to charge the officers in
the holding cell constituted two separate acts of resisting a
peace officer. The jury found him guilty of both counts.

-- 3 of 14 --

4
DISCUSSION
I
Sufficiency Of The Evidence
Defendant contends the evidence was insufficient to support
his conviction on count three -- resisting Sergeant Barber --
because Sergeant Barber was “merely present in the cell” when
defendant refused to comply with Officer Lamarr’s request to
surrender his watch and shoes. In making this argument,
defendant inexplicably ignores the later incident in the holding
cell, when he jumped up from the floor and rushed toward both
Officer Lamarr and Sergeant Barber. This omission is all the
more inexplicable because defendant specifically notes the later
incident in the statement of facts in his brief, which
immediately precedes his sufficiency of the evidence argument.
We have made it clear that to prevail on an insufficiency
of the evidence argument, “the defendant must set forth in his
opening brief all of the material evidence on the disputed
elements of the crime in the light most favorable to the People,
and then must persuade us that evidence cannot reasonably
support the jury’s verdict. [Citation.] If the defendant fails
to present us with all the relevant evidence, . . . then he
cannot carry his burden of showing the evidence was insufficient
because support for the jury’s verdict may lie in the evidence
he ignores.” (People v. Sanghera (2006) 139 Cal.App.4th 1567,
1574, second italics added.)
That is the case here. Because defendant has failed to
persuade us the evidence of the incident in the holding cell

-- 4 of 14 --

5
does not support his conviction for resisting Sergeant Barber,
his challenge to that conviction fails.
II
Jury Instruction On “Great Bodily Injury”
The information in this case alleged defendant’s prior
conviction of violating Penal Code1 section 4501, which makes it
a felony for a “person confined in a state prison” to commit “an
assault upon the person of another with a deadly weapon or
instrument, or by any means of force likely to produce great
bodily injury.” Under the prosecutor’s theory, to constitute a
prior “strike” conviction that would support the doubling of the
term for receiving stolen property, the section 4501 conviction
had to have been based on defendant’s personal use of “a
dangerous or deadly weapon.” (§§ 1170.12, subds. (b)(1), (c),
1192.7, subd. (c)(23).)
In a bifurcated proceeding before the jury on the prior
conviction, the prosecution presented evidence that defendant
was convicted of violating section 4501 based on an incident in
which he used a blow gun to shoot a blow dart at two officers.
The trial court instructed the jury that “[a] deadly or
dangerous weapon means any weapon, instrument, or object that is
capable of being used to inflict great bodily injury or death.”
The court did not instruct the jury on the meaning of the term
“great bodily injury.” Defendant contends this was error
1 All further statutory references are to the Penal Code
unless otherwise indicated.

-- 5 of 14 --

6
because “great bodily injury” has “a definition unique to the
law,” namely, “‘a significant or substantial physical injury.’”
(See § 12022.7, subd. (f).)
As the People point out, this court rejected an identical
argument more than 20 years ago in People v. Kimbrel (1981) 120
Cal.App.3d 869, concluding that “[t]he substitution of
‘significant’ or ‘substantial’ for ‘great,’ in the context of
bodily injury, makes no gains on meaning” and that given “the
long acceptance of ‘great bodily injury’ as a term commonly
understandable to jurors . . . it has not acquired a technical
legal definition requiring in the absence of special
circumstances a clarifying instruction.” (Id. at pp. 873, 876.)
Defendant ignored Kimbrel in his opening brief and did not file
a reply brief. Accordingly, he has failed to give us any reason
why we should depart from it.
III
Assistance Of Counsel
In addition to the charges previously discussed, defendant
was charged with -- but found not guilty of -- making criminal
threats. That charge was based on statements defendant made to
Deputy McDonald after the officers closed the door of the
holding cell. At the time of the incident, Deputy McDonald
recorded those statements on a digital recorder. Both the
prosecutor and defense counsel transcribed the recording, with

-- 6 of 14 --

7
different results.2 Defense counsel cross-examined Deputy
McDonald at length about the recording and what he thought he
heard defendant say.
During his closing argument, the prosecutor told the jurors
defense counsel had given them an “interesting transcript and
spent a lot of time trying to confuse you and the officer.
That’s defense lawyer 101. Don’t buy it. Don’t get confused.
Don’t let him prevail on that. It’s really freshman level
defense lawyer tactic. [¶] It’s on tape. Play it. Listen to
it. Read it. It’s all there, what happened.”
Later on, the prosecutor asserted “[t]here is going to be a
defense argument. [Defense counsel] is going to tell you, well,
he was in jail. How could he possibly have followed through on
a threat.” The prosecutor then informed the jury that “the
ability to immediately carry out the threat is not required” and
asserted, “It doesn’t matter that he didn’t have present
ability. If [defense counsel] tells you different, huh-uh.
More defense lawyer 101 stuff. He’s trying to confuse you.
Don’t do it.”
Shortly thereafter, the prosecutor expressed concern “about
the fact that there [are] two versions of the transcript of the
threat.” He then stated, “This places me in a bad position
2 Both sides agreed defendant told Deputy McDonald “I’ll see
you when I get out,” but defense counsel’s transcript showed
Deputy McDonald calling defendant a “brat” before that, and the
prosecutor’s transcript showed Deputy McDonald asking defendant
“Is that a threat?” to which defendant responded, “It’s a
promise, stupid.”

-- 7 of 14 --

8
because [defense counsel] is my good friend, but that transcript
is rather consistent with an effort to confuse you
inappropriately, and I don’t accuse [defense counsel] of
anything because he’s my friend; however, you’re entitled to be
slightly troubled at the whole situation.”
Defense counsel did not object to any of the foregoing
argument. On appeal, defendant contends this failure to object
constituted ineffective assistance of counsel because
“[c]ounsel’s negligence in failing to object . . . allowed the
jury to deliberate [defendant’s] case with a ‘dirtied’ view of
[defense counsel], and a belief fostered by the prosecutor that
[defense] counsel was dishonest, which would tend to bias the
jury.”
“Generally, a conviction will not be reversed based on a
claim of ineffective assistance of counsel unless the defendant
establishes both of the following: (1) that counsel’s
representation fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability
that, but for counsel’s unprofessional errors, a determination
more favorable to defendant would have resulted. [Citations.]
If the defendant makes an insufficient showing on either one of
these components, the ineffective assistance claim fails.”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
Where a prosecutor’s remarks about defense counsel “would
be understood by the jury as an admonition not to be misled by
the defense interpretation of the evidence, rather than as a
personal attack on defense counsel,” defense counsel’s failure

-- 8 of 14 --

9
to object to those remarks or seek an admonition does not
constitute ineffective assistance of counsel. (People v.
Cunningham (2001) 25 Cal.4th 926, 1003.) We believe that is the
case here. The jury most likely understood the prosecutor’s
comments as an admonition not to be “confused” by defense
counsel’s interpretation of the evidence, rather than as a
personal attack on the integrity of defense counsel. Indeed,
the prosecutor specifically told the jury that defense counsel
was his “good friend” and that he was not accusing defense
counsel “of anything.” Under these circumstances, there was no
misconduct, and defense counsel’s failure to object did not fall
below an objective standard of reasonableness.
Even if we were to conclude the prosecutor’s remarks were
improper, however, defendant’s claim of ineffective assistance
of counsel would fail because he has not shown a reasonable
probability of a better result if his attorney had objected or
asked for an admonition. On this point, it is significant to
note that the prosecutor’s comments related solely to the
evidence on the charge of making criminal threats, and the jury
acquitted defendant of that charge. Defendant fails to explain
how it is reasonably probable an objection or request for
admonition related to the prosecutor’s remarks would also have
led the jury to acquit him on the other charges to which the
prosecutor’s remarks did not relate.

-- 9 of 14 --

10
IV
Imposition Of Upper Term
At the sentencing hearing, the trial court imposed the
upper term of three years on defendant for receiving stolen
property. The court relied on five aggravating factors to
support its decision: (1) defendant’s numerous prior
convictions; (2) defendant’s prior prison terms; (3) defendant’s
unsatisfactory performance on parole; (4) the manner in which
the crime was carried out indicated planning; and (5) the crime
involved a taking of great monetary value.
Relying on the United States Supreme Court’s decision in
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403],
defendant claims the trial court’s imposition of the upper term
sentence for receiving stolen property violated his federal
constitutional right to a jury trial because the aggravating
circumstances -- other than the prior convictions -- were not
found true by a jury beyond a reasonable doubt or admitted by
him. We conclude the court did err to the extent it relied on
some aggravating circumstances not found by the jury, but the
error was harmless beyond a reasonable doubt because the court
undoubtedly would have imposed the upper term even if it had not
taken those circumstances into account.
In People v. Black (2005) 35 Cal.4th 1238, the California
Supreme Court rejected a Blakely claim similar to defendant’s,
concluding “that the judicial factfinding that occurs when a
judge exercises discretion to impose an upper term
sentence . . . under California law does not implicate a

-- 10 of 14 --

11
defendant’s Sixth Amendment right to a jury trial.” (Black, at
p. 1244.) In Cunningham v. California (2007) 549 U.S. ___ [166
L.Ed.2d 856], however, the United States Supreme Court held that
under Blakely and other decisions (including Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]), California’s
determinate sentencing law does “violate[] a defendant’s right
to trial by jury safeguarded by the Sixth and Fourteenth
Amendments” to the extent the law allows a judge to impose an
upper term sentence “based on a fact, other than a prior
conviction, not found by a jury or admitted by the defendant.”
(Cunningham, at p. ___ [166 L.Ed.2d at p. 864].)
It has been held that the “prior conviction” exception to
the rule of Apprendi and Blakely encompasses not only the fact
of a prior conviction, but also whether the defendant served a
prison term as a result of a prior conviction. (People v.
Thomas (2001) 91 Cal.App.4th 212, 216-222.) Thus, the facts
underlying two of the aggravating circumstances on which the
trial court relied here -- defendant’s numerous prior
convictions and his prior prison terms -- did not have to be
found by the jury for the trial court to rely on those
circumstances in imposing an upper term sentence.3
3 Although it is unnecessary to our decision that the trial
court’s reliance on these two aggravating circumstances was
proper, we note that the facts underlying these circumstances
were found true by the jury beyond a reasonable doubt in a
bifurcated proceeding held to determine the truth of various
allegations in the information regarding defendant’s criminal
record. Specifically, in that proceeding the jury found

-- 11 of 14 --

12
In contrast to those two aggravating circumstances, the
remaining three circumstances on which the trial court relied --
defendant’s unsatisfactory performance on parole, the manner in
which the crime was carried out indicated planning, and the
crime involved a taking of great monetary value -- did not fall
within the “prior conviction” exception to the Blakely rule, nor
were they supported by any of the jury’s findings or admitted by
defendant. Thus, under Cunningham, the trial court’s reliance
on those circumstances violated defendant’s Sixth Amendment
rights.
Defendant contends the court’s error “is a structural one
and requires reversal per se.” He is mistaken. Recently, the
United States Supreme Court held that Blakely error is not
structural error but is reviewed under a harmless-beyond-a-
reasonable-doubt standard. (Washington v. Recuenco (2006) 548
U.S. ___ [165 L.Ed.2d 466].)
We are persuaded beyond a reasonable doubt that even if the
trial court had known it could not properly rely on defendant’s
performance on parole, the manner in which the crime was carried
out, or the amount of money involved in the crime to impose the
upper term on defendant, the court would have imposed the upper
term nonetheless. In this regard, it is significant that before
reaching its final decision, the court tentatively decided to
impose the upper term based solely on defendant’s prior
defendant had nine prior felony convictions and had served a
prison term in connection with each of them.

-- 12 of 14 --

13
convictions, his prior prison terms, and his performance on
parole, and defendant offered no argument in opposition to that
proposal.4 Under these circumstances, we are persuaded the court
would have imposed the upper term even if it had not later
included as part of its final reasons for imposing the upper
term two additional aggravating circumstances the prosecutor
proposed after the court’s tentative ruling.
Similarly, we are persuaded the court would have imposed
the upper term even if it had not relied on defendant’s
allegedly unsatisfactory performance on parole. The record
showed (and the jury found beyond a reasonable doubt) that
defendant had nine felony convictions -- three for possession of
a deadly weapon in jail, three for assault on a custodial
officer, one for assault with a deadly weapon by a prisoner, one
for possession of a weapon by a prisoner, and one for battery of
a custodial officer. Given the nature and number of these
convictions, we are persuaded beyond a reasonable doubt that the
trial court would have imposed the upper term of three years for
receiving stolen property on defendant (rather than the middle
term of two years) even if the court had known that it could not
properly rely on defendant’s performance on parole, the manner
in which the crime was carried out, or the amount of money
4 When asked to comment on the court’s tentative ruling,
defendant made only a brief comment relating to a new trial
motion the court had already denied, and defense counsel
commented only on the issue of restitution.

-- 13 of 14 --

14
involved in the crime in making that decision. Accordingly, we
conclude the Blakely error in this case was harmless.
V
Section 654
Defendant contends the trial court erred in failing to stay
the sentence on one of his convictions for resisting a peace
officer because both counts were part of an indivisible course
of conduct. The People concede the error, and we accept their
concession and will modify defendant’s sentence accordingly.5
DISPOSITION
The judgment is modified by staying the sentence of “time
served” on count four pursuant to section 654. As modified, the
judgment is affirmed.
ROBIE , J.
We concur:
SCOTLAND , P.J.
HULL , J.
5 Because defendant’s sentence of “time served” on these
misdemeanor counts is not reflected on the abstract of judgment,
no modification of that document is necessary.

-- 14 of 14 --