State v. Gonzales

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NOT DESIGNATED FOR PUBLICATION

No. 107,798

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CARLOS DELGADO GONZALES,
Appellant.


MEMORANDUM OPINION

Appeal from McPherson District Court; RICHARD B. WALKER, judge. Opinion filed January 22,
2016. Affirmed in part, vacated in part, and remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jamie L. Karasek, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., HILL and STANDRIDGE, JJ.

Per Curiam: Carlos Delgado Gonzales appeals from his convictions and
sentences for vehicular burglary, criminal damage to property, and battery against a law
enforcement officer. For the reasons stated below, we affirm Gonzales' convictions.
Given the district court erred in scoring a previous out-of-state conviction as a person
felony, we must vacate Gonzales' sentence and remand for further proceedings to
determine whether his Arizona second-degree burglary conviction should be classified as
a person or nonperson offense for criminal history purposes.


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FACTS

In the early morning hours of August 10, 2011, McPherson Police Officer Jerry
Montagne responded to a Kwik Shop, where a vehicular burglary had been reported. Law
enforcement arrested and handcuffed Gonzales after numerous witnesses identified him
as the perpetrator of the crime. Gonzales was intoxicated, agitated, and yelling as
Montagne and another officer placed him in the backseat of Montagne's patrol car. Upon
arrival at the sally port of the county jail, Montagne removed Gonzales from the patrol
car and took him into the booking area inside the jail, where Montagne turned Gonzales
over to correctional personnel for processing. Processing inmates into the jail required a
pat-down search to remove all contraband and excess materials from their person and
clothing. Gonzales was in front of the counter in the booking area. He was still
handcuffed because he was being combative, threatening officers, and resisting restraint.
Corporal Randy Voran, a McPherson County Correctional Officer, was assisting in the
pat-down search when Gonzales threw his head back and struck Voran in the right
temple.

The State charged Gonzales with one count each of vehicular burglary, criminal
damage to property, and battery against a law enforcement officer. A jury convicted
Gonzales as charged. According to the presentence investigation (PSI) report, Gonzales'
criminal history included a 2002 Arizona juvenile adjudication identified on the report as
"Burglary 2nd Degree-Residence" that was classified as a juvenile person felony.
Gonzales and his attorney reviewed the PSI report, and Gonzales personally agreed at the
sentencing hearing that the report was an accurate reflection of his criminal history.
Accordingly, the district court set Gonzales' criminal history score at C and sentenced
him to a controlling 57-month prison term.



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ANALYSIS

Gonzales raises the following three points of error on appeal: (1) the evidence was
insufficient to support his conviction of battery against a law enforcement officer, (2) the
district court erred in failing to instruct the jury on battery as a lesser included offense of
battery against a law enforcement officer, and (3) the district court erred by classifying
his prior Arizona burglary adjudication as a person felony. We address each allegation of
error in turn.

1. Battery against a law enforcement officer

Gonzales argues that the State failed to present sufficient evidence to support his
conviction for battery against a law enforcement officer.

When the sufficiency of evidence is challenged in a criminal case, the appellate
court reviews all the evidence in the light most favorable to the prosecution. The
conviction will be upheld if the court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt based on that evidence. In
determining whether there is sufficient evidence to support a conviction, the appellate
court generally will not reweigh the evidence or the credibility of witnesses. State v.
Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). To the extent that Gonzales'
argument requires us to engage in statutory interpretation, this involves a question of law
over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321
P.3d 12, cert. denied 135 S. Ct. 91 (2014).

In order for the jury to find Gonzales guilty of battery against a law enforcement
officer, the State was required to prove that (1) Gonzales intentionally caused physical
contact with Corporal Voran in a rude, insulting, or angry manner; (2) Corporal Voran
was a county correctional officer and Gonzales was confined in a county jail facility; (3)
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Corporal Voran was engaged in the performance of his duty; and (4) the act occurred on
or about August 10, 2011, in McPherson County, Kansas. See K.S.A. 2014 Supp. 21-
5413(c)(3)(D).

Gonzales claims the evidence was insufficient to support his conviction because
there was no evidence presented that he was "'confined in'" the county jail facility when
the incident occurred since he was in the booking area of the jail and had not yet been
processed, confined to a cell, or had any charges filed against him. For support, Gonzales
cites State v. Perez-Moran, 276 Kan. 830, 80 P.3d 361 (2003).

In Perez-Moran, the Kansas Supreme Court considered the legislature's intent in
elevating the severity level of the crime of battery against a law enforcement officer, as
defined in K.S.A. 2002 Supp. 21-3413(a) (the prior version of K.S.A. 2014 Supp. 21-
5413[c]), to a felony when an individual confined in a correctional facility commits a
battery against a correctional institution employee. The Perez-Moran court stated: "[T]he
structure of the statute demonstrates an intent to promote order and safety in prisons,
juvenile facilities, and jails by providing a stronger deterrent to inmates contemplating
battering an officer or employee." 276 Kan. at 839-40. Gonzales suggests that the
Supreme Court's use of the word "'inmates'" evidences an intent by the legislature to
restrict the statute's application to persons who are actually confined in the jail in a legal
sense, not persons who are merely within the physical boundaries of the jail. Because the
State did not present any evidence that he was an inmate at the jail, Gonzales claims the
State failed to prove that he was "confined in" the jail.

Gonzales' reliance on Perez-Moran is misplaced. The Supreme Court's use of the
word "inmates" in describing the crime of battery against a law enforcement officer
should not be read as the legislature restricting the statute's application to those persons in
jail by court order and in a cell. The most fundamental rule of statutory construction is
that the intent of the legislature governs if that intent can be ascertained. State v.
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Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). When a statute is plain and
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
Gonzales' argument would have this court read a requirement into the statutory definition
of battery against a law enforcement officer that is not found there. K.S.A. 2014 Supp.
21-5413(c)(3)(D) does not differentiate between battery that occurs within different areas
of a correctional facility or jail. Gonzales' reading of the statute would severely restrict
the protections afforded to correctional officers and is in direct contrast to the legislative
intent to promote order and safety in prisons, juvenile facilities, and jails and to provide a
deterrent to the battering of correctional officers, as expressed by the Perez-Moran court.
See 276 Kan. at 839-40.

Moreover, a panel of this court previously has rejected an identical argument
under circumstances similar to those present here. See State v. Burgess, No. 107,739,
2013 WL 1010583 (Kan. App. 2013) (unpublished opinion). In Burgess, the State
charged the defendant with battery against a correctional officer under K.S.A. 21-
3413(a)(3)(D) after he struck a deputy sheriff in the booking area of an adult detention
facility. The district court held there was insufficient evidence to bind the defendant over
on the charge because he was not "'confined'" within the meaning of the statute, as the
booking room of the adult detention center was not part of a county jail facility. 2013 WL
1010583, at *2. On appeal by the State, the defendant argued that the word "'confined'"
was distinguishable from the term "'in custody.'" This court disagreed, holding that
"'confine'" is a common word, which must be accorded its ordinary meaning. The court
noted that the word is defined by various sources as meaning "'[t]o keep within bounds,'"
"'[t]o keep shut up,'" "'[t]o restrict in movement,'" "'to hold within a location,'"
"'imprison,'" and "'to keep within limits.'" 2013 WL 1010583, at *2. The court further
noted that the term "confinement" is defined as "'[t]he act of imprisoning or restraining
someone; the state of being imprisoned or restrained[,]'" "'detention in [a] penal
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institution[,]'" and "being '[d]eprived of liberty.'" 2013 WL 1010583, at *2. The Burgess
court concluded:

"Under any of these ordinary meanings of the common word, Burgess was
clearly 'confined.' He was within the 'brick and mortar' of a jail facility and his
movements were restricted. He was in the booking lounge, not the public lounge area. He
was already in jail clothing as the booking officer was preparing to process his admission.
He was under arrest and, clearly and admittedly, he was not free to leave the facility."
2013 WL 1010583, at *3.

As a result, the court in Burgess held the State had presented sufficient evidence to
establish that the defendant was confined in a jail facility when he struck the deputy. The
court also recognized several reasons why the legislature's choice to make battery against
a correctional officer a more serious crime than a similar battery against a law
enforcement officer is not unreasonable: there has already been a probable cause
determination to arrest a person being taken to jail; corrections personnel are usually not
armed; and an attack upon a corrections officer in one part of a jail facility could draw
other officers to respond, compromising security in other areas of the jail. 2013 WL
1010583, at *4.

These justifications for an enhanced penalty apply equally to a booking area as to
any other area of a jail, because the need to promote order and safety there is just as great
as in an individual cell. Gonzales was not wearing jail clothing at the time the battery
occurred, but the circumstances were otherwise identical to those present in Burgess.
Gonzales was under arrest and handcuffed in the booking area of the county jail while
waiting to be processed. Thus, it is uncontroverted that Gonzales was within the "brick
and mortar" of the jail facility and was not free to leave the confines of the jail. Viewed in
the light most favorable to the State, this evidence established Gonzales was confined in
the county jail when he committed the battery. Therefore, the evidence was sufficient to
support his conviction for battery against a law enforcement officer.
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2. Lesser included offense

Gonzales alleges the district court erred by failing to instruct the jury on battery as
a lesser included offense of battery against a law enforcement officer.

A district court is required to instruct the jury not only as to the crime charged but
also as to lesser included offenses where there is some evidence that would reasonably
justify a conviction of the lesser included offense. K.S.A. 2014 Supp. 22-3414(3); State v.
Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014). This duty to instruct applies even
if the evidence is weak, inconclusive, and consists solely of the defendant's testimony.
State v. Maestas, 298 Kan. 765, Syl. ¶ 6, 316 P.3d 724 (2014).

Gonzales concedes he did not request this instruction at trial. A party cannot claim
error for the district court's giving or failing to give a jury instruction unless (1) the party
objects before the jury retires, stating distinctly the matter to which the party objects and
the grounds for the objection or (2) the instruction or the failure to give the instruction is
clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). The
appellate court uses a two-step process in determining whether the challenged instruction
was clearly erroneous: (1) the court must determine whether there was any error at all by
considering whether the subject instruction was legally and factually appropriate,
employing an unlimited review of the entire record and (2) if the court finds error, it must
assess "'whether it is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred.'" 297 Kan. at 204. Reversibility is subject
to unlimited review and is based on the entire record. The party claiming error in the
instructions has the burden to prove the degree of prejudice necessary for reversal. State
v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).



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Legally appropriate

To be legally appropriate, a jury instruction on battery must be a lesser included
crime of battery against a law enforcement officer. Whether a crime is a lesser included
offense of another is a question of law over which an appellate court has unlimited
review. Armstrong, 299 Kan. at 432.

K.S.A. 2014 Supp. 21-5109(b)(2) defines a lesser included crime to include "a
crime where all elements of the lesser crime are identical to some of the elements of the
crime charged." K.S.A. 2014 Supp. 21-5413(c)(3)(D) requires the State to prove a battery
under K.S.A. 2014 Supp. 21-5413(a) in order to convict a defendant of battery against a
law enforcement officer. K.S.A. 2014 Supp. 21-5413(c)(3)(D) requires additional proof
that the battery was committed against a correctional officer or employee engaged in the
performance of his or her duty by a person confined in a city or county jail facility.
Therefore, by definition, K.S.A. 2014 Supp. 21-5413(a) is a lesser included offense of
K.S.A. 2014 Supp. 21-5413(c)(3)(D).

Factually inappropriate

But even if a jury instruction on burglary would have been legally appropriate,
failure to instruct on the lesser included crime is erroneous only if the instruction would
have been factually appropriate under K.S.A. 2014 Supp. 22-3414(3). State v. Molina,
299 Kan. 651, 661, 325 P.3d 1142 (2014). Where there is some evidence that could
reasonably justify a conviction of some lesser included crime, then the judge must
instruct the jury as to the crime charged and any such lesser included crime. Armstrong,
299 Kan. at 432. The standard of review is whether, after review of all the evidence
viewed in the light most favorable to the prosecution, the appellate court is convinced
that a rational factfinder could have found the defendant guilty of the lesser crime. 299
Kan. at 433.
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Gonzales suggests that a battery instruction was factually appropriate here because
the evidence regarding whether he was confined in the jail was unclear at best. As
previously discussed, however, the evidence presented at trial clearly established that
Gonzales was confined in the jail. Moreover, there was no evidence presented that would
indicate Corporal Voran was not a correctional officer engaged in the performance of his
duty when he was struck by Gonzales. Therefore, if the jury believed Gonzales
committed battery, then he was guilty of violating K.S.A. 2014 Supp. 21-5413(c)(3)(D).
See State v. Trujillo, 225 Kan. 320, 322, 590 P.2d 1027 (1979) (no error in failing to
provide instruction on battery as lesser included offense of battery against law
enforcement officer where evidence at trial excluded theory of guilt on battery); State v.
Hunter, 41 Kan. App. 2d 507, 521-22, 203 P.3d 23 (same), rev. denied 289 Kan. 1282
(2009).

Because the evidence at trial excluded the possibility of Gonzales being found
guilty of simple battery, an instruction on battery was not factually appropriate and the
district court did not err by failing to so instruct the jury. As a result, we need not reach
the second step of the clear error analysis.

3. Criminal history

Gonzales challenges the classification of his 2002 Arizona burglary adjudication
as a person offense for purposes of calculating his criminal history score. Gonzales
argues that, by making factual determinations about the Arizona burglary, the district
court violated his constitutional rights as articulated in Descamps v. United States, 570
U.S. __, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In response, the State claims
Gonzales' claim is barred by the invited error doctrine because Gonzales failed at
sentencing to challenge his criminal history score or object to the accuracy of the PSI
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report. In the alternative, the State claims the district court properly treated the
adjudication as a person felony because the Arizona and Kansas burglary statutes are
comparable as a matter of law; thus, the district court did not need to make any factual
determinations in classifying the Arizona crime as a person felony.

Although Gonzales did not challenge the person classification of the 2002 Arizona
burglary in the district court, he may do so for the first time on appeal. In State v. Dickey,
301 Kan. 1018, 1034, 350 P.3d 1054 (2015), our Supreme Court held that "a legal
challenge to the classification of a prior adjudication for purposes of lowering [one's]
criminal history score[]can be raised for the first time on appeal pursuant to K.S.A. 22-
3504(1)." See K.S.A. 22-3504(1) (authorizing court to "correct an illegal sentence at any
time"); State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005) (defining illegal sentence
in part as "one that does not conform to the statutory provisions, either in the character or
the term of the punishment authorized"); see also State v. Weber, 297 Kan. 805, 814-15,
304 P.3d 1262 (2013) (defendant cannot agree to an illegal sentence).

Given the absence of any procedural bar, we turn to the merits of Gonzales' claim
that the district court erred by classifying his prior Arizona burglary adjudication as a
person felony instead of a nonperson offense for purposes of calculating his criminal
history score. Whether a prior conviction should be classified as a person or nonperson
offense involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA).
Interpretation of a statute is a question of law over which appellate courts have unlimited
review. State v. Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015), cert. denied __ U.S. __
(January 11, 2016). Recently, the Kansas Supreme Court made clear that a prior crime's
classification as person or nonperson is determined based on the classification in effect
for the comparable Kansas offense at the time the current crime of conviction was
committed. 302 Kan. at 589.

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We begin our analysis with Ariz. Rev. Stat. Ann. § 13-1507(A), the subsection of
the Arizona statute governing the crime of second-degree burglary that forms the basis
for Gonzales' prior conviction. In 2002, this subsection of the statute provided: "A person
commits burglary in the second degree by entering or remaining unlawfully in or on a
residential structure with the intent to commit any theft or any felony therein." Ariz. Rev.
Stat. Ann. § 13-1507(A). Also relevant to our discussion is K.S.A. 2011 Supp. 21-5807,
the Kansas burglary statute, which at the time Gonzales committed the offenses of
vehicular burglary, criminal damage to property, and battery against a law enforcement
officer, provided:

"(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexual battery crime
therein;
(2) building, manufactured home, mobile home, tent or other structure which is
not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of
persons or property, with intent to commit a felony, theft or sexual battery therein."
K.S.A. 2011 Supp. 21-5807(a).

Burglary as defined in K.S.A. 2011 Supp. 21-5807(a)(1) is a person felony, but
burglary as defined in K.S.A. 2011 Supp. 21-5807(a)(2) or (a)(3) is a nonperson felony.
K.S.A. 2011 Supp. 21-5807(c)(1)(A)-(C).

Finally, K.S.A. 2011 Supp. 21-6811(e) also is relevant. It states:

"(e) Out-of-state convictions and juvenile adjudications shall be used in
classifying the offender's criminal history. An out-of-state crime will be classified as
either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a
felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall
classify the crime as person or nonperson. In designating a crime as person or nonperson
comparable offenses shall be referred to. If the state of Kansas does not have a
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comparable offense, the out-of-state conviction shall be classified as a nonperson crime.
Convictions or adjudications occurring within the federal system, other state systems, the
District of Columbia, foreign, tribal or military courts are considered out-of-state
convictions or adjudications. The facts required to classify out-of-state adult convictions
and juvenile adjudications shall be established by the state by a preponderance of the
evidence."

Relying on K.S.A. 2011 Supp. 21-6811(e), Gonzales claims Kansas does not have
an offense comparable to the offense of second-degree burglary under Ariz. Rev. Stat.
Ann. § 13-1507(A) and therefore his out-of-state conviction must be classified as a
nonperson crime. Gonzales argues that under the Arizona statute, "[a] person commits
burglary in the second degree by entering or remaining unlawfully in or on a residential
structure with the intent to commit any theft or any felony therein" whereas the
comparable Kansas burglary statute is limited to burglaries committed by "entering into
or remaining within" a residential structure or dwelling with the intent to commit a
felony, theft, or sexual battery therein. In support of his argument, Gonzales cites to State
v. Alvarez, No. 1 CA-CR 12-0044, 2012 WL 5894857 (Ariz. App. 2012), where a man
was prosecuted and convicted of second-degree burglary under Ariz. Rev. Stat. Ann. §
13-1507(A) for being on the roof of a dwelling and stealing parts of the air conditioning
unit housed on that roof. Because the act of remaining unlawfully on a residential
structure would not violate the Kansas burglary statute, Gonzales claims the district court
erroneously looked beyond the language of the Arizona second-degree burglary statute to
make factual findings without requiring the State to prove those facts beyond a
reasonable doubt. See Descamps, 133 S. Ct. 2276; Apprendi, 530 U.S. 466.

Under the analysis in Descamps, which was adopted in Kansas by our Supreme
Court in Dickey, 301 Kan. at 1021, a court may use one of two approaches to determine
whether a prior conviction may be used for sentencing purposes. The categorical
approach is appropriate "when the statute forming the basis of the defendant's prior
conviction contains a single set of elements constituting the crime." 301 Kan. at 1037. In
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such a case, the court determines whether a prior conviction may be used for sentencing
purposes by comparing the elements of the two crimes. If, however, the elements of the
prior crime of conviction are the same as or more narrow than the later offense, the prior
crime may be used for sentencing purposes. See 301 Kan. at 1037.

The second approach, the modified categorical approach, "applies when the statute
forming the basis of the prior conviction is a 'divisible statute,' i.e., a statute which
includes multiple, alternative versions of the crime and at least one of the versions
matches the elements of the generic offense." 301 Kan. at 1037. Relevant here, second-
degree burglary under Ariz. Rev. Stat. Ann. § 13-1507(A) is a statute which includes
multiple, alternative versions of the crime and at least one of the versions matches the
elements of the current version of the Kansas burglary statute. Both the Arizona and the
Kansas statutes allow for convictions when a person enters or remains unlawfully in a
residential structure; i.e., a dwelling. Accordingly, it is possible that there are at least two
instances where the elements of the Arizona second-degree burglary statute could match
the elements of the Kansas burglary statute. Yet, as Gonzales' correctly argues, it is
possible that his 2002 Arizona second-degree conviction did not involve these elements.

Given the Arizona statute includes multiple, alternative versions of the offense of
second-degree burglary and at least one of the versions matches the elements of the
Kansas offense of generic burglary, the modified categorical approach as described in
Descamps and Dickey is the proper method to determine whether Gonzales' prior
conviction may be used for sentencing purposes. That approach allows a sentencing
court, without running afoul of Apprendi, "to look beyond the elements of the statute and
examine a limited class of documents to determine 'which of a statute's alternative
elements formed the basis of the defendant's prior conviction.'" Dickey, 301 Kan. at 1037-
38. Such documents include "charging documents, plea agreements, jury instructions,
verdict forms, and transcripts from plea colloquies as well as findings of fact and
conclusions of law from a bench trial." 301 Kan. at 1038.
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Based on the foregoing analysis, we must vacate Gonzales' sentence and remand
for further proceedings to determine whether his Arizona second-degree burglary
conviction should be classified as a person or nonperson offense for criminal history
purposes. At resentencing, the district court may examine documents related to the
Arizona second-degree burglary conviction for purposes of determining the nature of the
offense, including charging documents, plea agreements, jury instructions, verdict forms,
and transcripts from plea colloquies as well as findings of fact and conclusions of law
from any bench trial. See Dickey, 301 Kan. at 1038. If the district court is unable to
determine the basis of the Arizona second-degree burglary conviction or if the court
determines that it involved the act of remaining unlawfully on a residential structure, then
there is no comparable Kansas offense and the Arizona second-degree burglary
conviction must be classified as a nonperson felony. However, if the district court
determines that the Arizona second-degree burglary conviction involved unauthorized
entry into or remaining within any a dwelling with intent to commit a felony, theft, or
sexual battery therein, then the Arizona second-degree burglary conviction can be
classified as a person felony.

Gonzales' convictions are affirmed, but the sentence imposed is vacated and the
matter remanded for further proceedings to determine whether his Arizona second-degree
burglary conviction should be classified as a person or nonperson offense for criminal
history purposes.