P. v. Mezzles
Filed 12/2/13 P. v. Mezzles CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
WAYNE MEZZLES,
Defendant and
Appellant.
2d Crim. No.
B240078
(Super. Ct. No.
1359458)
(Santa
Barbara County)
Wayne Mezzles appeals
from the judgment following his conviction by jury of
(Pen. Code, § 273.5, subd. (a));
possession of a deadly weapon (former § 12020, subd. (a)(1))
four counts of criminal threats (§ 422);
and two counts of assault (§ 240).
In a bifurcated proceeding, the
trial court found true allegations of two prior serious felony convictions (§ 667,
subd. (a)(1)), and two prior serious or violent felony convictions within the
meaning of California's "Three
Strikes" law. (§§ 667, subds.
(b)-( i), 1170.12, subds. (a)-(d).) The
court sentenced him to an aggregate term of 90 years to life in state prison.
Appellant contends that,
with respect to count 4, the evidence of his threat is not sufficient to
support the verdict, "as a matter of law," and that the jury was
wrongly instructed. He also asserts that
(1) prosecutorial misconduct denied
him a fair trial; (2) the court abused its discretion in refusing to strike his
prior serious felony convictions; and (3) the resulting 90 years to life
sentence constituted cruel and unusual punishment. We conclude that the evidence fails to
establish that the alleged victim of count 4 was the recipient of any "criminal
threat" as defined by section 422.
We will reverse that conviction, modify the sentence accordingly, and
otherwise affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
On October 30, 2010, appellant was home, drinking
beer and Southern Comfort with his wife, Laura. At about 10:30
p.m., he went out to get more Southern Comfort. Laura's 15-year-old daughter, Amy, her
boyfriend, Will, and his friend, Cory, were in Amy's room. Laura was talking with them while appellant
was out. She was sitting next to Cory, holding
up and examining one of his hands and talking about hand scars. Suddenly they heard a loud thud or bang on
the outside wall or window, and noticed appellant outside, yelling. He barged inside, with brass knuckles on one
hand, and headed toward Amy's room.
Appellant "raise[d] his hand in a violent gesture . . . toward"
Cory, who fled.
Appellant entered Amy's
room, grabbed Laura's hair, and said something like, "You lying bitch, whore." He slammed Laura's head into Amy's dresser, breaking
her eyeglasses and giving her a black eye.
Amy jumped between Laura
and appellant, and told him to get away from her mom. He threw Amy to the floor, and then pulled
Laura through the hallway, to the master bedroom. Amy followed them. After hearing appellant yell, "I'm going
to kill you," Will called the police. Appellant left Laura's room and went to Amy's
room briefly, where he tried to tackle Will.
Will brushed him off.
When appellant left Laura's room,
Amy called the police. He returned to
Laura's room and said, "Now that I'm going to jail for good, I'm going to
kill you guys." He also yelled, "You
fucking bitches, I'm going to kill you."
The police arrived and arrested
appellant. Before the police took him
away, he looked at Amy and said, "I'll kill you." Amy was scared.
Appellant's mother,
Karen Brennan, testified regarding appellant's childhood, his alcoholic father,
and his alcoholic stepfather. The defense
also called Dr. Robert Owen, a clinical psychologist, as an expert witness. Dr. Owen diagnosed appellant with
post-traumatic stress disorder (PTSD) and alcoholic dependence disorder. He testified that PTSD impairs a person's
ability to process information and weigh consequences.
DISCUSSION
Appellant argues his
count 4 criminal threat conviction must be reversed because Amy is not a victim
for purposes of section 422, as a matter of law. More specifically, he argues Amy "was
not the person threatened" because he did not direct the count 4 threat at
her. (
Section 422, subdivision
(a) provides in relevant part as follows:
"Any person who willfully threatens to commit a crime which will
result in death or great bodily injury to another person, with the specific
intent that the statement . . . is to be taken as a threat, even if there is no
intent of actually carrying it out, which, on its face and under the
circumstances in which it is made, is so unequivocal, unconditional, immediate,
and specific as to convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for his or her
immediate family's safety, shall be punished by imprisonment in the county jail
not to exceed one year, or by imprisonment in the state prison."
In response to the jury's
request for clarification, the trial court advised the jury that count 4 was
based on "the statement made by [appellant] to Laura Mezzles, heard by Amy
[S.] prior to the police being called, I'm going to kill you." The prosecution drafted that response, which
tracked its theory that Amy heard appellant threaten to kill Laura, her mother,
which frightened Amy.
Appellant asserts that section
422 "applies only to a threat that is communicated to a particular person
and causes that same person to be in fear for herself, or for members of her
family, or both." Continuing in
that vein, he asserts that because his "I'm going to kill you,"
threat was not made "to Amy," she cannot be "the 'person
threatened'" under section 422. We
agree.
"A [section 422] criminal
threat . . . is a specific and narrow class of communication." (In re
Ryan (2002) 100 Cal.App.4th 854, 863.)
"When interpreting a statute, 'we turn first to the language of the
statute, giving the words their ordinary meaning.' [Citation.]" (People
v. Rubalcava (2000) 23 Cal.4th 322, 328.) "'If the language is clear and
unambiguous there is no need for construction . . . ."" People
v. Talibdeen (2002) 27 Cal.4th 1151, 1154.)
Under section 422, the victim of a criminal threat is "the person
threatened," the person to whom the perpetrator directs, or communicates
his threat. (§ 422, subd. (a);
789, 806 ["[T]he defendant must intend for the victim to receive and
understand the threat."]) Amy was
not "the person threatened" in count 4.
Substantial Evidence
Appellant argues that
there is not sufficient evidence to support the count 4 threat. We agree.
In reviewing the
sufficiency of the evidence, we review the entire record in the light most
favorable to the prosecution "to determine whether it contains evidence
that is reasonable, credible, and of solid value, from which a rational trier
of fact could find the defendant guilty beyond a reasonable doubt." (People
v. Silva (2001) 25 Cal.4th 345, 368.) We do not resolve credibility issues or
evidentiary conflicts, and presume in support of the judgment the existence of
every fact the jury could reasonably have deduced from the evidence. (People
v. Boyer (2006) 38 Cal.4th 412, 480.)
A reversal is unwarranted unless there is no substantial evidence to support
the finding under any hypothesis whatever.
(People v. Zamudio (2008) 43
Cal.4th 327, 357.)
Using CALCRIM No. 1300,
the trial court instructed the jury as follows regarding the criminal threat
counts which named Amy as the victim: "The
defendant is charged in Counts 4, 5, and 6 with having made a criminal threat
in violation of Penal Code section 422. [¶] To
prove that the defendant is guilty of this crime, the People must prove that: [¶] 1.
The defendant willfully threatened to unlawfully kill or unlawfully cause great
bodily injury to Amy [S.]; [¶] 2. The
defendant made the threat orally; [¶] 3. The defendant intended that
his statement be understood as a threat; [¶] 4. The threat was so clear, immediate,
unconditional, and specific that it communicated to Amy [S.] a serious
intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused Amy [S.] to be
in sustained fear for her own safety; [¶] AND 6. Amy [S.]'s fear was reasonable
under the circumstances." (CALCRIM
No. 1300.) That instruction reflects the
elements of a section 422 criminal threat, including the requirement that the
perpetrator directed the threat at the victim.
The prosecution's theory
was that the count 4 threat was directed at Laura before the police were
called, but overheard by Amy, the named victim. While these facts, for which there was ample
evidence, would support a conviction if Laura were the named victim, they do not
support a like conviction for the count 4 threat naming Amy as the victim. The crime contemplates a victim, "the
person threatened" and words that cause "that person reasonably to be in sustained fear
for . . . her own safety or for . . . her
immediate family's safety . . . ." (§ 422 subds. (a), italics added.) The theory of the prosecution would define the
victim as either the person threatened or a member of their immediate family
who overheard the threat. That theory is
contrary to the plain language of section 422. (People
v. Rubalcava, supra, 23 Cal.4th at p. 328; People v. Talibdeen, supra, 27 Cal.4th at pp. 1154-1155.) Substantial evidence does not establish that
Amy was the victim of the count 4 threat.
Prosecutorial Misconduct
Appellant contends that
the prosecutor committed misconduct by
seeking to elicit inadmissible opinion testimony from appellant's psychiatric
expert, Dr. Robert Owen. The trial court
ruled that the expert could testify about PTSD, but not about appellant's
capacity to form the requisite specific intent for criminal threats or whether
he had that intent at the time of the crimes.
The prosecutor nonetheless repeatedly asked questions regarding
intent. Some examples follow: "By Mr. Verburgt: Q:
Would it be fair to say that the defendant's emotional functioning may
be of interest, but it's largely irrelevant in a case in determining guilt?"
"Q:
What's the intent required for a violation of Penal Code section 273.5?"
"Q:
Do you know what the mental state required, "yes" or "no,"
for violation of Penal Code section 422, criminal threats?" The court sustained objections to the just
quoted questions. Thereafter, at the
bench, the court reminded Mr. Verburgt of its ruling limiting Dr. Owen's
testimony regarding "the defendant's specific state of mind." Mr. Verburgt persisted in asking improper
questions. The court excused the jury, conferred
with counsel, and restated its ruling regarding the limits on Dr. Owen's
testimony. Mr. Verburgt again returned
to the topic of appellant's state of mind, asking, "So you have no way of
knowing what the defendant's state of mind was on that date, do you?" The court interrupted and admonished him, "It's
an improper question." Mr. Verburgt
soon asked another improper question, leading the court to admonish him, yet
again as follows: "No. We've made this clear. I've told you several times, do not go into
that area." Next question."
The standards of review
of prosecutorial misconduct are well settled.
(People v. Williams (2013) 56
Cal.4th 630, 671.) A prosecutor who uses
deceptive or reprehensible methods to persuade commits misconduct. (Ibid.) If the prosecutor's actions infect the trial
with such unfairness as to deny due process, the federal Constitution demands
reversal. (Ibid.) Under California law,
a prosecutor who uses such methods commits misconduct even if his actions do
not result in a fundamentally unfair trial.
(Ibid.)
To preserve a claim of
misconduct, a defendant must make a timely objection and request an admonition. (People
v. Williams, supra, 56 Cal.4th at p. 671.)
Defendant's claim is preserved, however, if an admonition would not have
cured the harm. (Ibid.) When a misconduct
claim challenges comments made by the prosecutor, the pertinent inquiry is whether
there is a reasonable likelihood the jury construed or applied the remarks in
an objectionable manner. (
Defense counsel moved
for a mistrial based upon prosecutorial misconduct after Dr. Owen completed his
testimony. Counsel argued the prosecutor's
repeated violations of the ruling limiting Dr. Owen's testimony were
prejudicial because they suggested the defense was hiding the truth from the
jury. The trial court concluded the
improper questions hurt the prosecutor and any detriment to the defense was
cured by the court's admonishment to the prosecutor. Defense counsel submitted the matter without
requesting any further admonition, and the court denied the motion.
Appellant has forfeited
his claim by failing to request another admonition. (People
v. Williams, supra, 56 Cal.4th at p. 671.)
Moreover, he has not shown that an admonition would not have cured the
harm. (Ibid.) Forfeiture aside, the
cited misconduct was harmless under any standard of review. The trial court instructed the jury that "[n]othing
the attorneys say is evidence" and the jury must "decide what the
facts are in this case," using "only the evidence that was presented
in this courtroom." (CALCRIM No.
222.) It further instructed the jury
that attorneys' "questions are not evidence," and it should "not
assume that something is true just because one of the attorneys asked a
question that suggested it was true."
(Ibid.) It is presumed that the jury understood and
followed the instructions. (
1234.) There is no reasonable likelihood
that the jury construed or applied the challenged questions in an improper or
erroneous manner. (People v. Samayoa (1997) 15 Cal.4th 795, 843-844;
970, overruled on other grounds by People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) That said, we join with the trial court in
concluding that Mr. Verburgt engaged in improper questioning in light of the
court's repeated admonitions. It appears
from this record that Mr. Verburgt engaged in deliberate misconduct dedicated
to the evasion, or outright defiance, of the court's ruling and admonitions.
Romero
Appellant contends that
the trial court abused its discretion by denying his motion to strike one or
both of his prior convictions for purposes of three strikes sentencing,
pursuant to People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 504, or reduce them to misdemeanors. We disagree.
Defense counsel argued
that the victims' injuries were minimal; appellant was under the influence of
alcohol at the time of the offense; his stepfather sexually abused him for many
years, which caused appellant to suffer from a mental disorder (PTSD); and he had
taken steps to rehabilitate himself. The
prosecution stressed appellant's long criminal history, which included
convictions for violent offenses and violations of parole and probation, the
absence of mitigating factors, and the numerous aggravating factors in his case. The court declined to strike either of the
prior "strike" convictions.
A trial court has the
discretion to strike a prior conviction for purposes of sentencing if the
defendant falls outside the spirit of the three strikes law. (§ 1385; People
v. Superior Court (Romero),
discretion, the court "must consider whether, in light of the nature and
circumstances of [the defendant's] present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character,
and prospects, the defendant may be deemed outside the scheme's spirit, in
whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies." (People
v. Williams (1998) 17 Cal.4th 148, 161.)
The refusal to strike a
prior conviction is likely to be considered an abuse of discretion only in
extraordinary cases where the trial court was unaware of its discretion, or
considered impermissible factors. (
378.) In the absence of such a showing,
trial court is presumed to have acted to achieve the legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review. (
14 Cal.4th 968, 977-978.)
There was no abuse of
discretion. Appellant's prior strikes
were a 1999 robbery of a homeless man (§ 211) and a 2007 criminal threat (§ 422)
he made against a woman who ended their dating relationship. His prior convictions include other violent
crimes, such as a misdemeanor corporal injury upon a spouse/or former spouse (§
273.5, subd. (a)) and battery (§ 242). As
the trial court observed, the courts and the prosecution repeatedly gave him opportunities
on probation, in treatment programs, instead of sentencing him to prison, but
that "didn't work." The court
also had "to balance the safety of the community," and appellant's "danger
to the community." The court
reasonably determined that appellant "is the kind of person that is within
the scope of the Three Strikes Law" and denied his Romero motion.
Cruel and Unusual
Punishment
We reject appellant's
contention that his sentence is grossly disproportionate to his offense and
constitutes cruel and unusual punishment under the Eighth Amendment of the
United States Constitution. In
274, the United States Supreme Court upheld a mandatory life sentence under a
Texas recidivist statute even though the defendant had been convicted of
obtaining $120.75 by false pretenses and his prior convictions consisted of two
nonviolent felonies. The Court reasoned that the sentence under a recidivist
statute is "based not merely on that person's most recent offense but also
on the propensities he has demonstrated over a period of time during which he
has been convicted of and sentenced for other crimes." (Id.
at p. 284.) The statute serves the
legitimate goal of deterring repeat offenders and of segregating the recidivist
"from the rest of society for an extended period of time." (Ibid.) Since appellant's strikes include violent
offenses, the justification for a lengthy sentence here is more compelling than
in Rummel.
We also reject appellant's
contention that his sentence violates the state constitutional prohibition
against cruel or unusual punishment. (Cal.Const., art. 1, § 17.) A punishment violates the state constitution
if "it is so disproportionate to the crime for which it is inflicted that
it shocks the conscience and offends fundamental notions of human dignity." (In re
Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Appellant's sentence was warranted because of
his recidivism, the violent nature of his prior offenses, and the circumstances
of the present offense. (See
1502.)
DISPOSITION
Appellant's conviction
on count 4 is reversed and dismissed, and the sentence attributable to that
count is stricken. The clerk shall prepare
an amended abstract of judgment and forward a copy to the
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Edward
H. Bullard , Judge
Superior
Court County of Santa Barbara
______________________________
Linda C. Rush, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for
Plaintiff and Respondent.
otherwise stated.
Appellant possessed metal (brass) knuckles in violation of former section
12020, subdivision (a)(1). In connection
with the possession of metal knuckles, the current operative provisions are section
16920, which defines metal knuckles, and section 21810, which continues former
section 12020, subdivision (a)(1) without substantive change. (38 Cal.L.Rev.Comm. Reports (2009) p. 217.)
