P. v. Simon























Filed 12/12/12 P. v. Simon CA2/5











>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>





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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
FIVE




>

THE PEOPLE, Plaintiff and Respondent, v. MARK JAMES SIMON, Defendant and Appellant.

B238040 (Los Angeles County Super. Ct. No. MA053849)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Carol Koppel, Judge.
(Retired Judge of the former Mun. Ct.
for the San Bernardino Jud. Dist.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed as modified.

Maggie Shrout,
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, Assistant Attorney General, Paul M. Roadarmel and Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.





I. INTRODUCTION



A jury
convicted defendant, Mark James Simon, of:
felony assault by means likely to produce great bodily injury (Pen.
Code,href="#_ftn1" name="_ftnref1" title="">[1] § 245, subd. (a)(1));
misdemeanor obstructing business operations (§ 602.1, subd. (a)); and
misdemeanor battery (§ 242). The jury
further found defendant personally inflicted great bodily injury on the victim
in the commission of the aggravated
assault. (§ 12022.7, subd.
(a).) Following a jury trial waiver, the
trial court found defendant had previously sustained a serious felony
conviction within the meaning of sections 667, subdivisions (a) through (i),
and 1170.12. Defendant was sentenced to
nine years in state prison. We modify the oral pronouncement of judgment
to impose certain fees as to each count. We affirm the judgment in all other
respects.



II. THE EVIDENCE



A. The Prosecution Case



Elaine M.
Heitman was working as a box office manager at the Antelope Valley Fair on August 28, 2011. A person could not enter the fair without
purchasing a ticket at the box office.
At 1:45 p.m., prior to the
fair’s 2 p.m. opening, defendant
approached a ticket window. He asked how
he could volunteer. The salesperson
summoned Ms. Heitman. At first,
defendant inquired about volunteering.
Then he demanded to be let into the fair without purchasing a
ticket. Ms. Heitman told defendant three
or four times that he could not enter the fairgrounds without a ticket. Nevertheless, defendant went around a corner
and entered the fairgrounds through an unstaffed ticket gate. Ms. Heitman radioed the fair security
guards. Ms. Heitman acknowledged that a
person could enter the fair for free
on Sundays from 2 to 4 p.m. if they donated five cans of food. But Ms. Heitman did not remember defendant
inquiring about that possibility.

Chris
Nollinger was a security supervisor at the fairgrounds. He was notified that someone had run through
the front entrance and towards the barn area.
Mr. Nollinger proceeded in that direction. Meanwhile, two other security officers, Tim
Palen and Thomas Murphy, had detained defendant. When Mr. Nollinger arrived, it appeared
defendant was trying to pull away from Mr. Palen and Mr. Murphy. Defendant swung with a closed fist towards
Mr. Palen. Mr. Palen testified, “I
ducked the punch.” Mr. Nollinger
approached and told defendant to stop resisting and get on the ground. Defendant attempted to run. Mr. Palen and Mr. Nollinger grabbed
defendant’s arms. He started to pull
away. Mr. Nollinger wrapped an arm
around defendant’s neck and performed “a takedown” maneuver. Defendant’s feet were knocked out from
underneath him. Mr. Nollinger’s intent
was to place defendant on the ground.
Mr. Nollinger intended to handcuff defendant. Both men fell to the ground. Defendant landed on his stomach. Another person placed a knee on defendant’s
left shoulder. Defendant was told
numerous times to place his hands behind his back. Defendant refused to comply. Mr. Nollinger testified, “He was using
vulgarities and not complying.”
Defendant grabbed Mr. Nollinger’s upper left thigh area. Mr. Nollinger applied a pressure point
maneuver. Mr. Nollinger placed a thumb
behind defendant’s right ear and applied pressure. This was done to get defendant to release Mr.
Nollinger’s thigh. The maneuver worked
temporarily. Defendant released Mr.
Nollinger’s thigh. But defendant grabbed
Mr. Nollinger’s testicles and squeezed them.
Mr. Nollinger described the squeezing action as involving a severe
amount of force. Mr. Nollinger felt
extreme pain. He screamed out in
pain. Mr. Nollinger tried unsuccessfully
to release defendant’s grip. Mr.
Nollinger then punched defendant in the face.
Defendant let go. Mr. Nollinger
was then able to control defendant.
Other officers handcuffed defendant.
No officer hit, stomped on or kicked defendant.

As noted,
Mr. Palen encountered defendant. Mr.
Palen repeatedly asked defendant to stop.
Mr. Palen described defendant as “pretty” agitated. But defendant did not look confused or
disoriented. Mr. Palen testified, “He
seemed like he was in a hurry to go somewhere.”
According to Mr. Palen, defendant was yelling. Defendant did not say he was looking for
someone. Mr. Palen testified Mr.
Nollinger yelled out when grabbed by the testicles. Mr. Palen knew that Mr. Nollinger was hurt.

Mr.
Nollinger was treated by emergency href="http://www.sandiegohealthdirectory.com/">medical personal. He was not transported to a hospital. Mr. Nollinger saw a doctor for the injury the
following morning. Mr. Nollinger
suffered numerous abrasions on his knees and severe bruising of the testicle
region. With respect to his knee injury,
Mr. Nollinger testified, “I still have injuries that are resulting from that,
from the inner knee.” Three months after
the altercation, Mr. Nollinger continued to experience pain in his knee. He was receiving ongoing physical
therapy. The constant pain and aching in
his testicles had lasted the remainder of the day he was injured and into the
next day. He had a noticeable limp, had
to take rest breaks throughout the day, and was visibly in pain. He felt like he had a severe, constant
stomach ache. He described the stomach
pain as “lower and very intense.” Mr.
Nollinger suffered no permanent damage to his testicles.



B. The Defense Case



Defendant
testified in his own defense. He
recalled speaking with Ms. Heitman and another person at the ticket booth. He was unsatisfied with their response to his
request to volunteer. He wanted to
volunteer because he did not have money for a ticket. He left the ticket window and walked through
what looked like a vendor entrance. He
was frustrated and wanted to speak to somebody in charge. A man directed defendant to leave the
fairgrounds. Defendant was uncomfortable
being handled that way. Defendant said
he was going to start walking. Defendant
testified: “I was walking along—along
the fairgrounds, looking at some of the vendor booths. I walked for, probably, a minute. And then, after that , . . . suddenly, I
found myself on the ground.” He did not
know how he got there. He felt pressure
and danger, as if he was being held down.
He saw four or five men standing around him. Defendant testified as to what happened
next: “[M]y sight was directed to a man
standing right on top of me. . . . I reached
up with my hand and squeezed his testicles.
I felt that doing that will allow me to . . . get up and start walking
again. [¶] . . .
And I found myself immediately handcuffed and led into a police
car.” During the struggle, defendant
said he wanted to speak to a police officer.
He did not recall anyone telling him to stop.

On
cross-examination, defendant denied that had run at any point. He admitted he knew he was not supposed to be
on the fairgrounds. And he knew there
were security guards at the fair. When
he saw the security guards, he knew they were coming to ask him to leave. But he did not recall being asked to
leave. His arm was grabbed, but he was
not punched or kicked. He felt his body
was being violated, did not like it and
pulled away. Defendant, who was afraid,
did not want them to touch him.
Defendant suffered scrapes on his elbows and knees from the fall to the
ground. Defendant spoke with a police
officer. But defendant did not recall
what he said. Defendant admitted he had
been convicted of felonies in 1992 and 2001.



III. DISCUSSION



A. Defendant’s Competency



Defendant
contends the trial court expressed a doubt as to his competency to stand
trial. Defendant argues that as a result
a competency hearing should have been held.
Defendant cites the circumstances described below in support of his
claim. Prior to trial, the following
discussion transpired: “The Court: . . .
[¶] And there has been no renewed
motion by the people right? [Deputy
District Attorney Adan] Montalban: No,
Your Honor. [¶] The Court:
And you are looking for that third strike, I take it? [¶]
Mr. Montalban: Yes. There is – we are investigating a possible
third strike. [¶] The Court:
Okay. [¶] And you will let us know as soon as you get
it. [¶]
Mr. Montalban: Yes, Your
Honor. [¶] The Court:
Or if you can get it, or you can’t get it. [¶] Mr.
Montalban: Yes. [¶]
The Court: And the defense, there
has been no movement? [¶] [Deputy Public Defender Rosario] Corona: Your Honor, Mr. Simon did have an offer that
I did relate to the People. His offer
would be that the charge be reduced down to a misdemeanor and that he be then
allowed to go maybe to, perhaps, a mental institution for some[ ]time until
they can say that he’s okay, and then for him to be allowed to go and live with
his sister in Northern California.
[¶] The Court: Before the jurors come in, just let me ask
you this. That would be a Department 95
[mental health department] referral, I think, after or before trial,
right? Why didn’t we do that to start
with? [¶] Ms. Corona:
. . . [I]s the court indicating that the court is concerned about Mr.
Simon’s competency? If the court is
concerned, I believe that the court can make that determination. [¶]
The Court: At any time, I know. .
. . [¶]
But my concern is even without a . . . third strike is a life case. A second strike is a lot of years. [¶]
Ms. Corona: Well, Your Honor, why
don’t we—the court can—can make that determination. Counsel doesn’t make that determination at
all. It’s -- [¶]
The Court: Normally, counsel will
indicate that they think it might be appropriate. But I don’t know that it’s appropriate at
this point where we are picking a jury.
Maybe after the trial. Or -- [¶]
Ms. Corona: I think it’s
appropriate at any time the court feels that way. [¶]
The only information I can provide to the court is that my understanding
from Mr. Simon is that he has been started on medication just over the
weekend. [¶] The Court:
What’s he taking? [¶] (The defendant and his counsel confer sotto
voce.) [¶] Ms. Corona:
Lithium. [¶] The Court:
Lithium Carbonate? [¶] Ms. Corona:
I think that, that might be sufficient for the court. [¶]
But its—the ball is in the court’s hand.
[¶] The Court: I’m not ready for that at this point. But that was my first indication two days
ago, because it was such a serious case, and with the two strikes, I was hoping
he would opt for the four years. But
that’s his—something like that. I don’t
know. Maybe we should wait. We can do it after the trial. [¶]
Ms. Corona: My only concern, Your
Honor, is that with the medication having been started over the weekend, I
don’t know—my understanding, from these types of medication, is—is that it does
take time for it to have a therapeutic effect and for them to actually find a
therapeutic level. I haven’t spent
enough time with Mr. Simon this morning to get a better reading as to how he’s
doing today. I do note that he is more
reserved and withdrawn this morning than he has been in the past. [¶]
The Court: You indicated his
family was going to be here. So maybe
you can talk to them sometime today.
[¶] Ms. Corona: Well, that is my understanding, that his
family was going to be here today.
[¶] The Court: Okay.
Maybe they will. Maybe they will
show up. [¶] Ms. Corona:
So how does the court want to proceed then? [¶]
The Court: I think we will
proceed with the jury. We will choose a
jury, and then maybe after the family comes here and talks to him, we will have
some resolution, if at all possible.”

Later, just
prior to defendant’s testimony, the following occurred: “Mr. Montalban: Your Honor, before we bring the jury in, in
an abundance of caution, could the court just remind the defendant[] he has an
absolute right not to testify and that it’s his choice to testify? [¶]
I’m not sure if the defense counsel if joining in the admonishment,
however, I feel it’s appropriate, under these circumstances.” The trial court inquired of defendant: “The Court:
All right. [¶] Sir, you do understand you have the right not
to testify, don’t you? [¶] The Defendant: Yes, Your Honor. [¶]
The Court: But you have decided
to testify? [¶] The Defendant: That’s correct. [¶]
The Court: All right. [¶]
Then we will go forward.”
Defendant testified he had a general fear of being touched or grabbed;
he was afraid of getting into a fight.
He also testified that on the date of the altercation, he felt
frustrated, but not angry. Ms. Corona
asked defendant: “And what was
frustrating?” Defendant responded: “It was - - I had a vision of how things were
going to turn out, and I found out that - - I had intended to go to the
fairgrounds, enjoy the fair. And I was
wondering, well, it’s not working out that way.
[¶] And I - - I understand it
sounds like - - like there is a mental problem I have. And I’m sorry volunteering that, but that is
correct, I have a problem.” On Mr.
Montalban’s motion, the trial court struck that response.

At the time
of sentencing, Ms. Corona requested an Evidence Code section 730 evaluation of
defendant be prepared. Ms. Corona
stated, “I think that at this point it would be appropriate to do that . . .
.” The trial court commented, “You know,
I have anguished over this case because of the mental problems that we have
discussed, but in the long run and at the end it appears appropriate to
sentence this defendant at this time.”
The trial court inquired: “What
would be the benefit of a 730 evaluation?
What could it possibly do in this particular case because I, too, have
considered even appointing two psychiatrists, but after reviewing the file and
my notes it seems that is would be to no avail and not help the defendant or
the people because – [at which point Mr. Corona interrupted].” Ms. Corona later asserted: “. . . I do believe that a 730 evaluation
would still be appropriate in this case.
I understand - - and I understand and have heard what the court has said
in terms of its consideration and that it has reviewed its notes and I would
again just remind the court that it did have some trepidation in proceeding
with trial prior to starting that because the court sensed something about Mr.
Simon and I think not being a professional myself - - and I don’t know if the
court has any background on that, either - - I thought that maybe hearing from
a professional mental health worker would aid the court in its position. So I just wanted to put that on the
record.” The trial court responded: “All right.
The motion to continue is denied.”


Section
1367, subdivision (a) provides: “A
person cannot be tried or adjudged to punishment while that person is mentally
incompetent. A defendant is mentally
incompetent for purposes of this chapter if, as a result of mental disorder or
developmental disability, the defendant is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner.” Our Supreme Court
examined the test of mental competence to stand trial and the procedures
necessary to protect that right in People
v. Taylor (2009) 47 Cal.4th 850, 861-862:
“Neither the federal Constitution nor our statutes allow a
person to be tried criminally while mentally incompetent. (Pate v. Robinson (1966) 383 U.S. 375,
378; § 1367, subd. (a).) The
constitutional test is whether the defendant ‘“has sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual understanding of
the proceedings against him.”’ (Dusky
v. United States (1960) 362 U.S. 402 (per curiam).) Our statutes similarly forbid prosecution
while the defendant, ‘as a result of mental disorder or developmental
disability, . . . is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a rational
manner.’ (§ 1367, subd. (a)name="sp_999_5">name=B32020832333>.) [¶]
The federal Constitution further demands that ‘state procedures ... be
adequate to protect this right.’ (Pate
v. Robinson, supra, 383 U.S. at p. 378; accord, Drope v. Missouri
(1975) 420 U.S. 162, 172.) Our statutes
provide for suspension of criminal proceedings when a doubt as to the
defendant’s competence arises in the trial judge’s mind or when counsel informs
the court of counsel’s belief the defendant may be incompetent (§ 1368); the
appointment of psychologists or psychiatrists toname="SDU_862"> examine
the defendant (§ 1369, subd. (a)); and trial of the issue to a jury or to the
court (id., subds. (b)-(f)). The
defense may waive a jury trial and may even . . . submit the issue to the court
on the written reports of psychologists or psychiatrists. (People v. Lawley (2002) 27 Cal.4th
102, 131–132; People v. McPeters (1992) 2 Cal.4th 1148, 1169[,
superseded by statute on another point as stated in People v. Wallace (2008) 44 Cal.4th 1032, 1087].)” (Accord, People
v. Ary (2011) 51 Cal.4th 510, 517-518; People
v. Rogers (2006) 39 Cal.4th 826, 846-847.)

Our review is for substantial evidence
of incompetence. As our Supreme Court
explained in People v. Rogers, supra, 39
Cal.4th at page 847: “A trial court’s
decision whether or not to hold a competence hearing is entitled to deference,
because the court has the opportunity to observe the defendant during
trial. (See People v. Danielson [(1992)] 3 Cal.4th [691,] 727[, disapproved on
another point in Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13]; see also Drope v. Missouri, supra, 420 U.S. at p. 181.) The failure to declare a doubt and conduct a
hearing when there is substantial evidence of incompetence, however, requires
reversal of the judgment of conviction.
(Drope v. Missouri, supra, 420
U.S. at p. 181; Pate v. Robinson, supra, 383
U.S. at pp. 384-385; People v. Blair [(2005)]
36 Cal.4th [686,] 711.)”

Defendant
cites no substantial evidence he was unable to:
understand the nature of the proceedings; consult with Ms. Corona with a
reasonable degree of rational understanding; or assist in his own defense. Neither defendant nor Ms. Corona ever advised
the trial court defendant was having difficulty understanding the nature of the
trial proceedings or communicating with his attorney. Defendant’s trial counsel, Ms. Corona, was
necessarily in a position to advise the trial court if defendant showed signs
he was not competent to stand trial. She
did not do so. Nor did the trial court
ever express any concern about defendant’s ability to understand the
proceedings or to assist in his own defense.
Moreover, while testifying and at other times when defendant interacted
with the trial court, he did not act incompetently. Under these circumstances, we find no error
in failing to hold a competency hearing.



B. Section 654, Subdivision (a)



Defendant
argues his concurrent six-month sentence for misdemeanor battery should have
been stayed under section 654, subdivision (a).
Section 654, subdivision (a), precludes multiple punishment for a single
act or omission. (People v. Coleman (1989) 48 Cal.3d 112, 162; accord, >People v. Assad (2010) 189 Cal.App.4th
187, 200.) The Attorney General argues
that defendant forfeited his section 654, subdivision (a) contention because he
pled no contest to two misdemeanor charges in a separate case. No doubt, the trial court made reference to
“the other case” and the “misdemeanor case” when it imposed the six-month term
on the battery count. However, defendant
was convicted in this case in count 2 of obstructing a business operator in
violation of 602.1, subdivision (a). In
count 3, defendant was convicted of misdemeanor battery. The abstract of judgment clearly states that
defendant was convicted of misdemeanors in counts 2 and 3. Thus, there was no separate misdemeanor case
to which defendant had entered into any plea bargain.

In any
event, we review a multiple punishment contention for substantial
evidence. (People v. Coleman, supra,
48 Cal.3d at p.
162; People v. McCoy (2012) 208 Cal.App.4th 1333,
1338.) There were multiple assaultive
acts inflicted upon Mr. Nollinger. The
trial court could reasonably conclude these separate acts evidenced distinct
intentions to do violence to Mr. Nollinger.
(People v. Harrison (1989) 48 Cal.3d 321, 329-337; >People v. Surdi (1995) 35 Cal.App.4th 685, 690;
People v. Trotter (1992) 7 Cal.App.4th 363, 368; see 3
Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 284, p.
448.) No section 654, subdivision (a)
violation occurred.



C. Sufficiency Of The Evidence Of Great Bodily
Injury



Defendant
challenges the sufficiency of the evidence Mr. Nollinger suffered great bodily
injury within the meaning of section 12022.7.
Whether a victim suffered great bodily injury is a question of fact for
the jury. (People v. Escobar (1992) 3 Cal.4th 740, 750; People v. Wolcott (1983) 34 Cal.3d 92, 107.) Our review is for substantial evidence. (People
v. Le (2006) 137 Cal.App.4th 54, 59; People
v. Bustos (1994) 23 Cal.App.4th 1747, 1755.)

Pursuant to
section 12022.7, subdivision (f), “As used in this section, ‘great bodily
injury’ means significant or substantial physical injury.” Our Supreme Court has held: “Proof that a victim’s bodily injury is
‘great’—that is, significant or substantial within the meaning of section 12022.7—is
commonly established by evidence of the severity of the victim’s physical
injury, the resulting pain, or the medical care required to treat or repair the
injury. [Citations.]” (People
v. Cross (2008) 45 Cal.4th 58, 66.)
As our Supreme Court held in People
v. Escobar, supra, 3 Cal.4th at page 750, “[There is] no specific
requirement that the victim suffer ‘permanent,’ ‘prolonged,’ or ‘protracted’
disfigurement, impairment, or loss of bodily function.” (See, e.g., People v. Escobar, supra, 3 Cal.4th at pp. 744, 750 [multiple
abrasions, neck pain, vaginal pain lasting more than a week]; >People v. Le, supra, 137 Cal.App.4th at
p. 59 [shooting victim suffered pain and was unable to walk, stand, or sit
unassisted for weeks].)

Here, Mr.
Nollinger suffered extreme pain when his testicles were grabbed and
squeezed. Mr. Nollinger continued to
experience pain, required rest breaks from work, and was unable to walk
properly for the remainder of the day.
And he was still unable to walk properly during part of the following
day. Mr. Nollinger also suffered an
injury to his knee. He continued to
experience pain in his knee three months after the altercation. At the time of trial, he was undergoing
continuing physical therapy for the knee injury. This was substantial evidence from which the
jury could reasonably conclude defendant inflicted great bodily injury on Mr.
Nollinger.



D. Court Facilities and Court Operations
Assessments



The trial
court orally imposed a single $30 court facilities assessment (Gov. Code, §
70373, subd. (a)(1)) and one $40 court operations assessment (Pen. Code, §
1465.8, subd. (a)(1)). However, the
assessments should have been orally imposed as
to each count. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1415, fn. 3 [court facilities
assessment]; People v. Roa (2009) 171
Cal.App.4th 1175, 1181 [court operations assessment]; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866 [same]; see >People v. Alford (2007) 42 Cal.4th 749,
758, fn. 6.) The abstract of judgment is
correct in this regard and need not be amended.



IV. DISPOSITION



The oral
pronouncement of judgment is modified to impose a $30 court facilities
assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations
assessment (Pen. Code, § 1465.8, subd. (a)(1)) as to each count. The judgment is affirmed in all other
respects.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





TURNER,
P. J.



We concur:





KRIEGLER,
J. FERNS,
J.href="#_ftn2" name="_ftnref2" title="">*