Filed 8/25/20 P. v. Morgavo-Chasteen CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                2d Crim. No. B296360
                                                        (Super. Ct. Nos. 18CR04746
     Plaintiff and Respondent,                                  & 1499205)
                                                          (Santa Barbara County)
v.

STEPHEN RICHARD
MORGAVO-CHASTEEN,

     Defendant and Appellant.


           Stephen Richard Morgavo-Chasteen appeals from the
judgment after the jury convicted him of second degree robbery
(Pen. Code,1 §§ 211, 212.5, subd. (c)) and found that he used a
deadly weapon in the course of the robbery (§ 12022, subd. (b)(1)).
The jury also found true the allegations that he suffered a prior
strike conviction (§ 667, subds. (d)(1), (e)(1)), a prior serious


         1
       Unless otherwise noted, all subsequent statutory
references are to the Penal Code.
felony conviction (§ 667, subd. (a)(1)), and a prior prison term (§
667.5, subd. (b)). (Case no. 18CR04746.) The trial court
sentenced him to 13 years in state prison. He received a
concurrent two-year prison term for violation of probation. (Case
no. 1499205.)
             He contends: (1) the prosecution and the court
misled the jury by stating that strikes were not an issue, (2) the
evidence was insufficient to establish use of a deadly weapon, (3)
the trial court erroneously instructed the jury regarding use of a
deadly weapon, (4) the one-year enhancement for a prior prison
term must be stricken, and (5) the abstract of judgment
incorrectly shows fines imposed in the probation violation case.
We strike the one-year enhancement, order the abstract of
judgment corrected, remand for resentencing, and otherwise
affirm.
         FACTUAL AND PROCEDURAL BACKGROUND
                         Motions for mistrial
             The trial court ruled that three prior cases in which
Morgavo-Chasteen used force when confronted by store
employees regarding his involvement in thefts were admissible to
establish motive, intent, common scheme, and plan. (Evid. Code,
§ 1101, subd. (b).) The court also tentatively ruled they would be
admissible to impeach Morgavo-Chasteen’s credibility if he
testified. One of these prior cases was also the basis for the prior
strike and prior serious felony enhancements. Because evidence
of the convictions would be admitted at trial, the defense did not
move to bifurcate trial on the enhancements.
             The court ordered that neither side refer to
punishment or a “strike,” subject to reconsideration if Morgavo-




                                 2
Chasteen testified that he did not use a knife because he knew it
would subject him to increased punishment.
             During jury selection, defense counsel suggested
Morgavo-Chasteen might have previous convictions for robbery
and theft, and asked prospective jurors how that would affect
them.
             Also during jury selection, the prosecutor told the
prospective jurors not to consider punishment. She discussed an
excused juror who said he did not report a relative to police
because the relative potentially had three strikes and would be
sentenced to life in prison. She continued, “So I know he brought
that up and people might be thinking, oh, is this a strike case, is
this a three strikes case. That is not at all for you to consider. I
can even say, this is not a three strikes case.”
             The court sustained an objection and told the
prospective jurors, “Forget about the strike thing, you’re not to
consider it, and everybody agrees they will not consider
punishment including, quote, ‘strikes,’ relative to your decision
on guilt or innocence.” The court inquired whether all the jurors
understood that they were not to consider punishment, and all
the jurors nodded their heads.
             A juror expressed his moral opposition to some
punishment issues. He stated, “Seems like the cat is out of the
bag.” The court responded, “Sort of,” and asked if the juror could
set aside the issue of punishment in determining guilt.
             Morgavo-Chasteen moved for a mistrial on the
grounds that the jury had been told it was not a three strikes
case. The prosecutor acknowledged that she should not have
mentioned strikes. The court denied the motion for mistrial,
noting that the prosecutor’s statement was accurate because it




                                 3
was a two strikes case, and the defense was not prejudiced by the
statement.
             Another prospective juror said she would feel bad if
there were a three-strike consequence, but she would do what she
was instructed to do. The court repeated that the jurors were not
to consider punishment in determining whether the prosecution
proved its case. The court added, “There’s no strike issue here at
all.”
             Morgavo-Chasteen made a second motion for
mistrial, which was denied.
                           Trial testimony
             C.A., the assistant store manager of a home
improvement store, saw Morgavo-Chasteen take a battery
charger off the shelf, place it in a shopping bag, then leave the
store without paying. C.A. did not see a knife in Morgavo-
Chasteen’s hand while they were inside the store. C.A. contacted
him outside, stating, “Excuse me. Excuse me sir.”
             Morgavo-Chasteen turned around and faced C.A.
with a knife in his right hand and the bag in his left hand. He
was holding the knife close to his body near his chest. He did not
point the knife at C.A. C.A. saw the blade of the knife was two
and a half to three inches long and three-fourths to one-inch
wide.
             After he observed the knife, C.A. was “scared for [his]
life” because having a knife out is threatening. “[I]t kind of
stopped [him] in [his] tracks” and he did not approach Morgavo-
Chasteen. C.A. said, “Hey, I just want my stuff back. Put the
knife away. I want my stuff back.” Morgavo-Chasteen said,
“Just leave me alone” and “Stay back.” He ran across the street




                                 4
to a bicycle and rode off. C.A. did not follow him but instead
called police.
              When police arrested Morgavo-Chasteen 16 days
later, he had a Swiss army knife and a box cutter in his
backpack, and two pocket knives in his pants pocket. C.A.
identified the larger of the pocket knives as most similar to the
one Morgavo-Chasteen had in his hand.
              Morgavo-Chasteen testified that he did not have any
knives that day but was holding his keys, which included a two-
inch key to his bike lock, about the size of a car key. He knew
that use of force or fear would convert shoplifting into a robbery,
and “[t]he consequences are a lot more severe.” Because of his
record, he was “not willing to put [himself] at risk of such dire
consequences.” He did not mention a prior strike or the three
strikes law.
                              Sentencing
              The court sentenced Morgavo-Chasteen to the mid-
term of three years for robbery, doubled for the prior strike, plus
one year for use of a deadly weapon, five years for the prior
serious felony conviction, and one year for the prior prison term,
for a total of 13 years. The court imposed a restitution fine of
$3,900 (§ 1202.4, subd. (b)), an additional fine of $41 (§ 1202.5), a
court security fee of $40 (§ 1465.8) and a court facilities
assessment of $30 (Gov. Code, § 70373). The court found he did
not have the present ability to pay the court security fee.
              The court ordered a concurrent two-year prison
sentence for violation of probation in an attempted robbery case
(§§ 211, 664). The court ordered a restitution fine of $3,900 (§
1202.4, subd. (b)), an additional fine of $41 (§ 1202.5), a court
security fee of $40 (§ 1465.8) and a court facilities assessment of




                                  5
$30 (Gov. Code, § 70373). The court stayed the restitution fine
and found inability to pay the other fines. However, the abstract
of judgment shows the $3,900 restitution fine and the $41 fine in
both cases.
                             DISCUSSION
                       Comments about strikes
             Morgavo-Chasteen argues that he was prejudiced by
the prosecution’s statement that “this is not a three strikes case,”
and the court’s statement that “[t]here’s no strike issue here at
all.” He argues that these statements are untrue or misleading,
and signal that the jury need not take the case seriously. He
argues that the statements undermined his credibility when he
testified that he did not use a knife because of the consequences.
             “‘[T]he trial court is vested with considerable
discretion in ruling on mistrial motions.’ [Citation.]” (People v.
Williams (2006) 40 Cal.4th 287, 323 [upholding denial of mistrial
based on prosecutorial misconduct].) A mistrial should be
granted “‘only when a party’s chances of receiving a fair trial
have been irreparably damaged.’” (Ibid.) We review an order
denying a mistrial for abuse of discretion. (Ibid.) The trial court
here properly exercised its discretion to deny a mistrial.
             Because sentencing decisions are generally
“irrelevant to the jury’s task,” “it is unnecessary, and unwise, to
concern them with the ramifications of their verdict,” such as the
effects of the three strikes law. (People v. Cardenas (1997) 53
Cal.App.4th 240, 247-248.)
             The jury knew Morgavo-Chasteen had prior
convictions for grand theft person, felon in possession of firearm,
commercial burglary, and attempted robbery. He testified that
he did not use a knife because it would convert a shoplifting (a




                                 6
misdemeanor) to a robbery (a felony), which, because of his
record, would have “very severe” consequences. This testimony is
not inconsistent with the prosecutor’s and judge’s statements
that no strikes were involved. The statements during jury
selection thus did not impair the jury’s evaluation of Morgavo-
Chasteen’s testimony.
             Sufficiency of evidence of deadly weapon use
              “In considering a challenge to the sufficiency of the
evidence to support an enhancement, we review the entire record
in the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
              Robbery may be committed by using force or fear to
keep a store employee from regaining control over property that
has been taken. (People v. Estes (1983) 147 Cal.App.3d 23, 27.)
The jury found that in the commission of the robbery, Morgavo-
Chasteen “personally used a deadly and dangerous weapon, to
wit: a KNIFE, in violation of Penal Code section 12022(b)(1).”
The evidence was sufficient to show that he displayed a knife to
instill fear in order to facilitate taking the property.
              “Use” of a deadly weapon does not require infliction of
harm. “‘[T]here need not be conduct which actually produces
harm but only conduct which produces a fear of harm or force by
means or display of a [weapon] in aiding the commission of one of
the specified felonies. “Use” means, among other things, “to carry
out a purpose or action by means of,” to “make instrumental to an
end or process,” and to “apply to advantage.” [Citation.]’” (People
v. Masbruch (1996) 13 Cal.4th 1001, 1007 (Masbruch), italics




                                 7
omitted.) A jury may find “use” of a weapon when its display
aided in completing an essential element of the crime. (Id. at p.
1011.)
              While Masbruch dealt with an enhancement for use
of a firearm, the court noted that the relevant language of “uses”
and “in the commission of” also appears in the enhancement for
use of a deadly or dangerous weapon involved here. (Masbruch,
supra, 13 Cal.4th at p. 1006.) “Identical terms in analogous
statutes are to be construed in like manner,” including
enhancement statutes. (People v. Frausto (2009) 180 Cal.App.4th
890, 899-900.) “Use” of a deadly weapon is broadly construed.
(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1198 (Hajek and
Vo), overruled on other grounds by People v. Rangel (2016) 62
Cal.4th 1192, 1216.) “In determining whether there was
substantial evidence of . . . knife use, we may properly consult
cases construing the term ‘uses’ in other enhancement statutes,”
including personal use of a firearm. (Ibid.)
              An enhancement for use of a deadly weapon may be
based on deliberate display of a knife to intimidate and control
the victim. (Hajek and Vo, supra, 58 Cal.4th at p. 1200.)
Deliberate display of the knife here was sufficient for the jury
“‘“to find a facilitative use rather than an incidental or
inadvertent exposure.”’ [Citation.]” (Id. at p. 1198.) It was not
necessary for Morgavo-Chasteen to point the knife at the victim
or accompany its display with threats. (People v. Granado (1996)
49 Cal.App.4th 317, 322 [firearm use enhancement upheld where
defendant removed gun from waistband and held it in front of
himself while standing a few feet from victim], cited with
approval in Hajek and Vo, at p. 1198.)




                                8
             The enhancement here is not barred by In re B.M.
(2018) 6 Cal.5th 528, where the assailant used a butter knife to
make slicing movements on the victim’s legs, which were covered
with a blanket. That case did not involve an enhancement for
use of a deadly weapon. Instead, it held that the evidence did not
establish assault with a deadly weapon (§ 245, subd. (a)(1)),
which requires intent to commit acts likely to injure another and
use of an object in a manner likely to cause serious injury. (In re
B.M., at p. 534.) In re B.M. did not change the rule of Hajek and
Vo that a deadly weapon enhancement may be established by
display of a knife. As the court observed in People v.
McGee (1993) 15 Cal.App.4th 107, 115, display of a knife is not
sufficient to establish assault with a deadly weapon, but it may
be sufficient to establish an enhancement for use of a deadly
weapon if displayed to deter the victim from resisting. Sufficient
evidence here established that the knife was displayed to
facilitate taking the property and was not “incidental and
unrelated to the offense.” (Alvarado v. Superior Court (2007) 146
Cal.App.4th 993, 1003-1004.)
                      Deadly weapon instruction
             A trial court must instruct the jury on the law
necessary to its understanding of the case. (People v.
Roberge (2003) 29 Cal.4th 979, 988.) We independently review
whether jury instructions correctly state the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.)
             The jury was instructed, “If you find the defendant
guilty of the crime charged in Count 1, you must then decide
whether the People have proved the additional allegation that
the defendant personally used a deadly or dangerous weapon
during the commission of that crime. A deadly or dangerous




                                 9
weapon is any object, instrument, or weapon that is inherently
deadly or dangerous or one that is used in such a way that it is
capable of causing and likely to cause death or great bodily
injury. . . . Someone personally uses a deadly or dangerous
weapon if he or she intentionally: [¶] Displays the weapon in a
menacing manner.” (CALCRIM No. 3145, modified, original
italics.)
               A knife is not an inherently dangerous weapon.
(People v. Aledamat (2019) 8 Cal.5th 1, 6 (Aledamat).) But “‘it
may assume such characteristics, depending upon the manner in
which it was used . . . .’ [Citation.]” (Ibid.) Thus, the first option
given the jury—that a knife is an inherently deadly or dangerous
weapon—was invalid. Only the second option was valid—that a
knife is deadly or dangerous if used in a way capable of causing
and likely to cause death or great bodily injury.
               Where a jury is presented with both a valid and an
invalid theory, we apply the test of Chapman v. California (1967)
386 U.S. 18, 24, to determine whether the error is harmless
beyond a reasonable doubt. (Aledamat, supra, 8 Cal.5th at pp.
11-13.) Aledamat involved an assault with a deadly weapon, and
criminal threats with a deadly weapon use enhancement. From
three to four feet away, the defendant thrust a box cutter at the
victim, stating, “I’ll kill you.” (Id. at p. 4.) The court described a
box cutter as “a type of knife.” (Id. at p. 6.) As is the case here,
the jury was erroneously given the option of finding that it was
inherently deadly, or was used in a deadly manner. The court
found the error harmless because “if used to assault someone, i.e.,
used as a weapon, a box cutter is potentially deadly even if not
designed for that purpose.” (Id. at p. 14, italics omitted.) The
same reasoning applies here.




                                 10
             Morgavo-Chasteen relies on People v. Stutelberg
(2018) 29 Cal.App.5th 314, which contains the same alternative-
theory error regarding definition of a deadly weapon. The court
did not find the error harmless because it was unclear if
defendant held the box cutter in the same hand he swung at one
of the victims, and “the jury could reasonably conclude that his
‘flicking’ motion was more of a threat, as opposed to an act likely
to cause death or great bodily injury.” (Id. at p. 322.) Stutelberg
does not apply here because, as in In re B.M., the instruction
pertained to assault with a deadly weapon, not a “use”
enhancement.
             The jury’s verdict found that Morgavo-Chasteen used
a knife. Based on the jury instruction, this finding meant he
“[displayed] the weapon in a menacing manner.” (CALCRIM No.
3145, modified.) These findings are inconsistent with the claim
that Morgavo-Chasteen was holding keys, or possibly a knife, for
some innocent purpose other than as a weapon.
                          Prior prison term
             On October 8, 2019, the Governor signed Senate Bill
No. 136. This legislation provides that effective January 1, 2020,
the imposition of a one-year term pursuant to section 667.5,
subdivision (b), is limited to prior prison terms for sexually
violent offenses. The prior prison term here was for commercial
burglary (§ 459) and felon in possession of a firearm (§ 29800,
subd. (a)).
             We accept the Attorney General’s concession that
Senate Bill No. 136 applies to Morgavo-Chasteen’s sentence.
(People v. Winn (2020) 44 Cal.App.5th 859, 872.) The section
667.5, subdivision (b) enhancement is stricken. (People v. Wright
(2019) 31 Cal.App.5th 749, 756-757.) The case is remanded for




                                11
resentencing, at which time the trial court may reconsider all
sentencing choices, so long as the aggregate prison term is not
increased. (People v. Buycks (2018) 5 Cal.5th 857, 893; People v.
Burbine (2003) 106 Cal.App.4th 1250, 1260.)
                                Fines
             The abstract of judgment for the probation violation
case shows the imposition of a restitution fine of $3,900 (§ 1202.4,
subd. (b)) and an additional fine of $41 (§ 1202.5). However, in
the oral pronouncement of judgment, the trial judge stayed the
restitution fine and found inability to pay the other fine. The oral
pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th
181, 185-188.) We accept the Attorney General’s concession that
the abstract must be corrected as to these fines in Case no.
1499205.
                           DISPOSITION
             In Case no. 18CR04746, the one-year prior prison
term enhancement imposed pursuant to section 667.5,
subdivision (b), is stricken. In Case no. 1499205, the restitution
fine is stayed and the $41 fine is deleted. The cases are
remanded for resentencing. The clerk of the court shall prepare
an amended abstract of judgment and forward a certified copy to
the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
             NOT TO BE PUBLISHED.

                                     TANGEMAN, J.
We concur:

             GILBERT, P. J.

             YEGAN, J.




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                   James E. Herman, Judge

            Superior Court County of Santa Barbara

                ______________________________

           Adrian Dresel-Velasquez, under appointment by the
Court of Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael C. Keller and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
