P. v. Harris

Filed 10/1/07 P. v. Harris 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

----

A jury convicted defendant of many crimes committed against his wife and adult son, who attempted to protect his mother from defendants attack, and found defendant personally used deadly weapons (a knife against his wife and a car against his son). (Pen. Code, 245, subd. (a)(1) [two counts]; 422, 273.5, subd. (a), 646.9, subds. (a) & (b), 459 [1st, two counts], 136.1, subd. (a)(2), 417, 12022, subd. (b)(1).) The trial court sent defendant to prison for a total term of 13 years 4 months. Defendant timely appealed.

On appeal defendant claims the trial court improperly ordered him to be restrained, no substantial evidence supports one count, sentence on two counts should have been stayed and the trial court should not have imposed an upper term on one count. We shall affirm.

FACTUAL BACKGROUND

Defendant abused his wife (the victim) repeatedly and eventually, in defiance of a restraining order, broke into her house and dragged her off at knifepoint; when their adult son interceded, defendant tried to run him down with a car.

The victim married defendant in 1981 and they had four children. After 2001 he was not working and she became the wage earner. Physical abuse began in 2003, when he slapped her face on two or three occasions. All the remaining events took place in 2004.

In March the family moved to a different house and within about one week defendant punched the victim twice in the head in an argument over a rental car. Shortly after that, in another argument over a rental car, the neighbors called the police because, according to the victim, defendant was yelling so loudly, and I was basically in the corner[;] in that incident he hit her arms because I basically had myself kind of protected. She did not tell the police anything when they arrived.

On April 7, defendant began arguing with the victim because she had removed him from a bank account, as he had been depleting the fundsshe suspected because he was using drugs; he called her and, in her words, basically told me, if he couldnt live there, I couldnt live there either, and he was going to burn us all out of the house. This incident frightened her so much she reported it; defendant was convicted of making a threat and the court issued a restraining order against him. However, because he later seemed sorry the victim had it modified to allow him to come on the property.

At about this time defendant called a family meeting and according to two of the children he announced, I have a right to decide who lives and dies in my house. And that he was going to do something about [the victim]. How he was going to slit her throat and break her back.

Defendant continued to be abusive and on June 22, out of the blue, he argued with the victim over shelving she acquired a year earlier from a coworker. He followed her into the kitchen, where a daughter was washing dishes, and as she testified, he grabbed me and pushed me up against the refrigerator, then punched at her. The police arrested defendant but no restraining order issued.

When defendant was released from jail one week later he called the victim to pick him up and drive him to Stockton; she picked him up with one of their daughters in the back seat of the car. Shortly after leaving the jail, defendant demanded that she let him drive; when she stopped he began yelling at her for not bailing him out of jail and demanding that she restore his name to the bank account. He said he would kick the oldest son out of the house, monitor her phone calls and movements, and said, I should just kill you all, you know, but I cant do that right now. The victim was very scared about all this, particularly with her daughter in the back seat of the car, sitting there shaking. When they got home she resisted going in and He grabbed my arms and he said, I should just kill you now. Eventually she gave him $70 to stay elsewhere but when she refused to drive him he took her only car. When he called her later and she told him she had called the police, he said Well, you dont have a car anymore.

The police told her to get a restraining order which she did: It was served on July 4th by their son when defendant came to the house; his response was to throw it down and say he would not buy into these lies. Around this time he said if he had to go to jail again then he would find a way to get out and get [the victim].

At around 3:00 a.m. on July 11, defendant was in the victims house; when she reminded him he was not supposed to be there he said [it was] so easy to get in [this house], which frightened her because she had already had the locks changed. Defendant left as the police arrived. However, he returned to the house later that day, asking for money because he was on the run.

On July 15, defendants son saw him trying to pry a sliding glass door open. Also that day the victim woke up early due to a jiggling sound at the front door; she saw defendant through the peephole; he left before the police arrived. Later that day he went to her workplace in Rancho Cordova; the security guards called the police, but because the victim did not have a physical copy of the restraining order they let defendant go.

On July 19, defendants son refused to let him into the house; defendant claimed there was no restraining order but his son assured him that there was.

On July 25, while the victim was showering, defendant forced through a second-floor window, cutting the screen with a pair of scissors. He grabbed her and when her son tried to intervene, defendant chased him with the scissors. When she was speaking with the police dispatcher, defendant came in and told her to drop this whole thing. He was referring to the restraining order hearing that was coming up. The hearing was set for July 29.

On July 29, the permanent order was entered; defendant was present in court for that hearing.

On July 31, the victim saw defendant outside the house by the car she had told him he could have; he complained that it was out of gas.

On August 10, late in the evening, the victim heard her son crying out and found defendant hitting him over the head with a crowbar or like a tire iron. Her son testified he was at his computer when he suddenly felt a pounding headache; he did not at first realize he had been struck from behind. At trial the victim identified a tire iron that had been in the garage as the weapon.

Defendant grabbed the victim by her hair; she testified he had a knife and told me that if I didnt come with him he would kill me. He yelled out to their son that if he called the police, defendant would kill the victim; when he got her through the front door he told her not to scream or he would cut her throat. By demonstration her son and a daughter testified defendant held the blade horizontal to their mothers throat.

After taking her down the street defendant pushed or threw her into the car, causing a goose egg above her eye or knot on her head, and told her to lie down or he would kill her. She then saw her son running to her aid, swinging a baseball bat, and so began a prolonged battle in which the son beat on the car with the bat and defendant tried to run him over with the car, zig-zagging down the street as the young man tried to avoid being crushed; eventually defendant drove into a fence in his efforts to hit his son, and knocked the gas meter off a house. After hitting the fence defendant backed up and drove on the lawn like he was going to drive through the front door. Defendant had asked his son if he wanted to die today?

Before the chase began defendant tried to stab the victim in the car but she moved out of the way; she escaped from the car and ran home.

After the police arrived the victim and her children went to the hospital; when she returned home she called the police and asked them to check her house. They found defendant inside, eating from a tub of ice cream. In the house the victim found the tire iron, knife and baseball bat, and found that her clothing had been bleached.

The victims car was found over a mile away backed into some brush by a bike trail.

During the preliminary hearing, defendant made statements forming the basis for a charge of dissuading a witness. Defense psychiatrist Roberson testified defendant was in a psychotic delirium on August 10, caused by a diabetic condition; he also exhibit[ed] major depressive and anxiety symptoms[.] On cross-examination he opined defendant was not delirious during the incidents before August 10, which included the two stalking counts and one first degree burglary count. He conceded two other doctors did not find delirium in defendant. Defense psychiatrist Cavanaugh opined defendant had substance abuse disorder, attention deficit hyperactive disorder and pseudo-dementia, possibly due to depression. He disagreed with the delirium diagnosis, partly because of defendants goal-oriented behavior, such as threats to kill and trying to run his son down with the car.

Defendant testified he used cocaine sporadically to treat his depression and used marijuana to control pain caused by his diabetes. He admitted throwing down a restraining orderwhich he thought was oldand calling it lies, climbing in through the window after cutting the screen, being in court on July 29 and hearing the judge impose a stay-away order against him, and many other facts described by the Peoples witnesses.

As for the events of August 10, defendant remembered striking his sonwith his fist, although he had a tire iron in his other handbut claimed his son was reaching for a bat to attack him. He conceded the tire iron might have struck him somewhere. He did not recall holding a knife to the victims throat or threatening to kill her; he just wanted to talk to her outside the house. He remembered going into his car and hearing what seemed to me to be like a gunshot, as his son beat on the car with the bat; eventually he was able to start the car and drove to get away from his son, and then tried to get the bat away from him. Defendant believed he may have used cocaine that day. He denied intending to dissuade the victim from testifying at the preliminary hearing, but said he just wanted to get her attention to recognize what it was she was doing that was wrong. He wanted the proceedings to stop.

Defendant admitted convictions for threatening to burn her and the children out and for the kitchen incident. He admitted parking down the street from the house on August 10 but denied he was planning to kill anyone; his goal was to allow my family to see me as I was in the distress I was under and hope for some assistance from them.

The Peoples rebuttal psychiatrist, Robert Hart, testified he was appointed by the court to evaluate defendant and found he had Polysubstance abuse, and the doctor had the impression defendant was feigning mental illness to obtain lenient treatment. The medical records showed defendants diabetes was first discovered kind of by accident. A blood sugar test taken on August 11 was within the normal range at that time. Defendant was not suffering from delirium, which commonly involves purposeless and confused behavior[,] rather than the purposeful or goal oriented actions taken on August 10.

DISCUSSION

I. Leg Restraints

We review with deference to the trial courts decision an order restraining a defendant. (People v. Ramirez (2006) 39 Cal.4th 398, 450.) Acknowledging he was verbally disruptive during trial, defendant contends the trial court should not have ordered him to be placed in leg restraints because he never became physically threatening. We disagree.

Defendant made verbal outbursts and ignored the trial courts directives, and the trial court had to order him removed from the courtroom at one point.

He interrupted an early part of the victims direct examination by calling out Lying, prompting the trial court to admonish him. As she left the stand he told her he loved her, despite a restraining order still in effect. His attorney told the court defendant was very emotional and I dont know if he is able to control it. How willful this is. It is very difficult for him to sit through and listen. In response to the courts inquiry, defendant said in part I dont know how to absorb someone saying negative things about me and not being able to react. I dont know how not to. The court advised defendant to recall when he (defendant) was a staff sergeant in the army and to control his outbursts.

Despite these efforts, defendant continued to misbehave, in part by making what the trial court characterized as haruumps during unpleasant testimony. His attorney again said he was very emotional, And its not really allowing him to sit quietly. During one break, after one of his daughters testified, the trial court said Let me say this, Mr. Harris, there [have] been problems this morning with you making comments during the testimony[,] and I had some eye contact with you[;] defendant conceded this was so. During an Evidence Code section 402 hearing at which a defense psychiatrist testified, defendant again interrupted.

When that psychiatrist testified before the jury, defendant interrupted or made audible comments several times. The court eventually told defendant if there was one more outburst he would be removed from the courtroom. The court allowed one further remark to pass but finally had defendant removed. His attorney reiterated the belief that the outbursts stem from poor impulse control, and were not calculated. The prosecutor stated I have been advised by my office to ask you to shackle him under his clothing during my closing because of what happened with Queen. If he cant hear the questions here . . . he cant hear my close.

The court mentioned that defendant had a leg brace on and the prosecutor replied: Queen had a leg brace on, too. Attached to the chair. In the prosecutors view that would slow the defendant down and give her forewarning; she advised the court that she was pregnant and He moved from fixating on the case . . . to fixating on me. The defense objected to shackles or a restraint chair. The court indicated it would have him attached to the chair and use extra bailiffs as necessary.

The Queen case, the facts of which the trial judge and attorneys were well aware, involved a defendant who attacked a San Joaquin County prosecutor during closing arguments. (See People v. Queen (2006) 141 Cal.App.4th 838, 841.)

The next day defendant was so emotional in his cell the bailiff could not bring him to court. After discussions with counsel the court had defendant brought in and admonished him. Defendant said it was hard to be respectful when he was not being respected and was insulted constantly[;] it was hard to be attacked and not respond: I can only take so much.

Before defendant took the stand the court again admonished him and he vowed to behave. At the beginning of his testimony he explained his outbursts, stating, I have never been able to sit still and allow anyone to make accusations toward me unjustly and sit through it and just accept it.

Before the prosecutor questioned defendant the trial court again warned him. During the cross-examination defendant conceded he had yelled out in the courtroom in reaction to questions, despite warnings.

Although defendant then improved his behavior, the trial court was concerned because the prosecutor was pregnant and I think when she is going to be up and really arguing harder than she has in any cross-examination, that there is a danger that he might not be able to control himself. I base that on his inability to control himself when I had him removed from the courtroom. I am not going to risk it. She is pregnant. I am not going to risk it. The leg shackles would attach to a chair and not be visible to the jury. They dont see him being attached or unattached at all. They have seen him walking down the hall with a bailiff. They know he is in custody. They [know], I think he had the leg brace on when he got up to testify. So, I dont think there is going to [be] prejudice there.

The restraints were used only during closing arguments. The court instructed the jury (CALJIC No. 1.04) to disregard the use of restraints.

On appeal defendant admits he had been disruptive but asserts the trial court abused its discretion because he had never committed any act of violence, or threatened any act of violence. He had never lunged for the prosecutor or the trial court. He seems to argue that he was entitled to one free bite before restraints could be used.

We disagree. Defendant himself admitted he could not control his reactions to what he perceived as unfair statements. The trial court went to extraordinary lengths to give defendant chances to control himself. The trial court heard compelling testimony about serious crimes defendant committed, involving violence and the use of weapons and, in particular, disregard for lawful court orders, that is, multiple violations of restraining orders, including speaking to the victim in the courtroom. The court was also aware of the transcript of the preliminary hearing, further reflecting defendants contempt for court proceedings. The record demonstrates defendant was unlikely even to attempt to control his behavior. Defendant and his counsel both indicated he had difficulty controlling himself and in his own testimony defendant told the jury he could not sit still when unjust accusations were made.

The trial court, who was in a position to observe defendant throughout the trial, concluded that restraints during the closing argument, a stressful part of the trial for a defendant, were a necessary safety precaution, in part due to the special danger of an attack on the prosecutor and her unborn child. We, who can only read the cold transcript to determine the degree of defendants agitation as reflected by his outbursts and body language, cannot say the trial court abused her discretion. The People have met their burden to provide a record demonstrating a need for restraints. (See People v. Vance (2006) 141 Cal.App.4th 1104, 1112 (Vance).)

The California Supreme Court has consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendants right to testify or participate in his defense. (People v. Anderson (2001) 25 Cal.4th 543, 596; see People v. Combs (2004) 34 Cal.4th 821, 839.) Here, defendant asserts that because the trial court instructed the jury to disregard the use of restraints, There was no question that the jury knew that appellant was in leg restraints . . . . Defendant has not pointed to any case holding that the giving of the pattern instruction equates to a jury seeing restraints and therefore we reject the claim of presumed prejudice. Further, he has not explained how the shackles impaired his right to testify, since he was not shackled during his testimony, nor how they would impair his ability to participate with counsel. Accordingly, even if we found error, we would not reverse.

Defendants reliance on our decision in Vance, supra, 141 Cal.App.4th 1104 is unavailing because the trial court in that case explicitly refused to exercise discretion regarding shackling, and the record showed the jury was aware of the shackles. (Id. at pp. 1114-1115.)

II. Sufficiency of the Evidence; Count XIV

Defendant claims no substantial evidence supports count XIV, attempting to dissuade a witness. We disagree.

We review the facts and reasonable inferences in favor of the People. (People v. Barnes (1986) 42 Cal.3d 284, 303-304; People v. Johnson (1980) 26 Cal.3d 557, 575-578.) Contrary to an apparent assumption in defendants briefs:

The state of a mans mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a mans mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. (U.S. Postal Service Bd. of Govs. v. Aikens (1983) 460 U.S. 711, 716-717 [75 L.Ed.2d 403, 411].)

The crime in part applies to a defendant who [k]nowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (Pen. Code, 136.1, subd. (a)(2).) The People must prove the defendant had the specific intent to dissuade a witness from testifying. (People v. Young (2005) 34 Cal.4th 1149, 1211.)

As defendant concedes, There is, of course, no talismanic requirement that a defendant must say Dont testify or words tantamount thereto, in order to commit the charged offenses. (People v. Thomas (1978) 83 Cal.App.3d 511, 514.)

The victim testified that while she was testifying during the preliminary hearing, defendant began yelling loudly: He said I was lying. I was bearing false witness against him and then he yelled something to the degree that he was going to divorce me. A redacted portion of the preliminary hearing transcript was introduced as exhibit 73 at trial. Defendant interrupted, and even after the magistrate admonished him that he was represented by counsel and the outbursts are not helping you, defendant again interrupted and said he would divorce the victim: This [is] what you call bearing false witness[], one of the commandments that you broke, amongst the adultery. After the magistrate again admonished defendant he said:

THE DEFENDANT: You could remove me. I dont need to sit here and listen to these lies. [] God [is] going to get you for this.

THE COURT: Hey.

THE DEFENDANT: No, I dont understand whats going on, but I know this woman is lying and bearing false witness.

THE COURT: Stop talking.

THE DEFENDANT: Commandment. And shes an adulteress.

THE COURT: Get him out of here.

THE DEFENDANT: And God will deal with her. . . .

[] . . .

THE DEFENDANT: I [was] married to this woman for twenty-three years. All she want[s] to do is sit up there and lie.

THE COURT: Mr. Harris, please.

THE DEFENDANT: Hes going to get you. He [is] going to burn you in hell. You will burn in hell for this. Its called bearing false witness.

The victim testified these words caused her to fear for her life. On cross-examination defendant testified that his intention was to stop the proceedings.

Defendant asserts:

There was no evidence that appellant specifically intended to prevent [the victim] from testifying. He did not tell her to not testify. The only threat was [his] statement that he was going to divorce [her] and the comment that God would let her burn in hell. Given the state of affairs between them at the time the preliminary hearing was held, appellants comment that he would divorce [her] hardly constituted a threat that could have concerned her. The comment that God would let her burn in hell was hyperbole and not a physical threat.

Defendant finely parses the words and thereby fails to defer to the jury, which could consider the relationship of the parties and all of the circumstances surrounding the words, and all of the reasonable inferences flowing therefrom, in order to interpret their meaning and defendants intention. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340; People v. Ford (1983) 145 Cal.App.3d 985, 988.)

Although the instrument of punishment in defendants words was a deity (God will deal with her, Hes going to get you. He [is] going to burn you in hell. You will burn in hell for this) a rational interpretation is that defendant was trying to get the victim to stop bearing false witness. The jury could conclude that he was attempting to frighten the victim with divine retribution if she disobeyed him, the master of the household in his own eyes, by continuing to testify against him. The fact she was still frightened at the time of trial speaks volumes about the effect of the words on her; the jury could rationally conclude that her husband for many years knew exactly what to say to cause her real and prolonged fear. Further, defendant conceded his intention was to stop the proceedings. The jury could take that concession and combine it with the other evidence and infer that his intent was to keep the victim from repeating her account of his abuse of her.

A rational jury could conclude from the words spoken and the circumstances in which they were spoken, that defendant intended to dissuade the victim from testifying.

III. Penal Code section 654

On August 10, 2004, defendant entered the victims house, held a knife to her throat, dragged her outside and hurt her forehead when he forced her into a car; he also stabbed at her in the car but missed.

Defendant asserts that because he burgled the residence for the purpose of assaulting the victim, the sentence for the assault should have been stayed. He separately claims the sentence for inflicting corporal injury should be stayed because it was part of a course of conduct designed to obtain control of B[.] and cause her fear. Counts 2 and 9 occurred within seconds or minutes of each other and were part of a continuous sequence of events.

Generally speaking, one portion of Penal Code section 654 prohibits multiple punishment for two or more crimes committed with the same objective or done as part of an indivisible course of conduct. (People v. Bauer (1969) 1 Cal.3d 368, 375-378; Neal v. State of California (1960) 55 Cal.2d 11, 18-20 [arson was the instrument of attempted murder, multiple punishment proscribed])

Whether a defendant bore multiple objectives is a factual question for the trial court to resolve in the first instance. (People v. Nubla (1999) 74 Cal.App.4th 719, 730 (Nubla).)

Taking the latter claim first, defendant struck the victim in some manner in order to get her into the car, committing spousal abuse. Then, when his son appeared with the baseball bat to try to rescue his mother, and when she is making her get away . . . . She was getting out of the car . . . defendant stabbed at her, committing assault with a deadly weapon. The mere propinquity of these two crimes does not trigger section 654. (See Nubla, supra, 74 Cal.App.4th at p. 731 [Appellants act of pushing his wife onto the bed and placing the gun against her head was not done as a means of pushing the gun into her mouth].) Defendant argues we should not follow the Nubla case because it imports principles applicable in sex offense cases, but we accept the reasoning of that case.

Defendant also contends the purpose of the burglary was to assault the victim, portraying count II in this part of his brief as relating to defendants act of holding the knife against her throat, as indeed the trial court mistakenly indicated at sentencing. But as defendant points out elsewhere in his brief, the prosecutor elected the stab in the car as the act supporting count II. We reject the view that defendants intent in burgling the house necessarily encompassed an assault which took place after he left the house, went down the street some distance, forced the victim into the car and then attempted to stab her.

People v. Hester (2000) 22 Cal.4th 290, cited by defendant, held that on the facts of that case the Court of Appeal correctly concluded that an assault committed inside a house was the purpose of a burglary, particularly because the information alleged the theory of burglary was entry in order to commit that assault. (Id. at pp. 293-294.) Here, the entry was alleged to be with the intent to commit larceny and any felony. The prosecutor argued to the jury that the crimes defendant intended to commit inside the house when he entered it were kidnap and murder. Defendants intention in stabbing the victim was separate. (See People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300; People v. Nguyen (1988) 204 Cal.App.3d 181, 193.)

IV. Cunningham

At sentencing, defense counsel interposed an objection that an upper term could not be imposed absent jury findings on aggravating factors. During the pendency of this appeal, the United States Supreme Court issued Cunningham v. California, (2007) 549 U.S. ____ [166 L.Ed.2d 856], essentially agreeing with defendants position.

On appeal, defendant challenges the sentence imposed on count 7, burglary. On that count the trial court imposed the upper term of six years, after balancing factors not submitted to the jury for determination. The trial courts aggravating reasons were as follows:

This burglary involved a threat of great bodily injury, harm. The crime was carried out, parking the car down the road. You going into the house and hiding for a period of time . . . before initiating that attack. And sneaking up behind Shawn and hitting him with a crowbar. That is violent conduct. You were on probation when it occurred. And your performance on probation is unsatisfactory by going out and committing these new and much more serious crimes.

If one aggravating factor satisfies Cunningham, supra, 549 U.S.____, the statutory maximum for the offense is the upper term and the trial court is free to exercise discretion in considering other facts, whether or not any or all of those other facts would have made the defendant eligible for the upper term in the absence of jury findings or admissions by the defendant.  (People v. Black (2007) 41 Cal.4th 799 (Black II) As indicated in the above quotation, the trial court in this case in part relied on the fact that defendant was on probation.  That is a recidivism fact which may be determined by examining the records of defendants prior conviction. (Id. at p. 819; see People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.)  Accordingly, the trial court properly relied on that fact even though it was not submitted to the jury or admitted by the defendant.  That made defendant eligible for the upper term, regardless of other facts the trial court also considered when exercising its discretion.

    Therefore, we reject defendants Cunningham claim.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

SCOTLAND , P.J.

NICHOLSON , J.

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