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P. v. Medler

P. v. Medler


P. v. Medler

Filed 9/19/12 P. v.
Medler CA3









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opinion has not been certified for publication or ordered published for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.












Plaintiff and Respondent,



Defendant and Appellant.


Ct. No. 10F03544)

Following a jury
trial, defendant Vernon Karl Medler was convicted of two counts of href="">rape (Pen. Code, § 261, subd.
(a)(2)),href="#_ftn1" name="_ftnref1" title="">[1]
two counts of criminal threats
(§ 422), corporal injury to a
(§ 273.5, subd. (a)), false
(§ 236), assault
with a deadly weapon
(§ 245, subd. (a)(1)), and child endangerment
(§ 273a, subd. (a)), with enhancements for personally using a deadly
weapon (former § 12022, subd. (b)(1)).
After initially sentencing defendant to 17 years in state prison, the
trial court recalled the sentence to impose a 14-year term.

On appeal,
defendant contends the suppression of a police video denied him a fair trial,
and concurrent sentences on the corporal injury to a cohabitant, false
imprisonment, and assault with a deadly weapon counts violated section
654. We shall affirm.


G.P. began a
romantic relationship with defendant in February 2010. The couple, both in their 20’s, had consensual
sex after the second date, and defendant moved in with G.P. at her mother’s
house shortly thereafter. G.P. shared
the house with her two children, ages two and four, her sister, her mother and
her 20-year-old brother.

In May 2010,
defendant told G.P. he was in love with her.
To show his love, defendant got her name tattooed on the back of his
neck for her birthday. G.P. did not
share the feeling, as she had known defendant for only a few months.

On several
occasions, defendant made threats to kill both G.P. and then himself if she
ever left him. He made one such threat
in early May, when G.P. was paying a traffic ticket at the courthouse on Power
Inn Road.
When she returned to the car, defendant had her cell phone, and
displayed messages to G.P. from her ex-boyfriend Chris, the father of her
two-year-old daughter.

Defendant was
upset because he did not want G.P. seeing the man. He first punched the car radio and knocked
the knob off. Defendant then put his
hands around G.P.’s neck, pushed her up against the window, and shoved her full
force in the chest. G.P.’s children, who
were in the back seat of the car, cried and screamed. When G.P. asked if he wanted to do this in
front of her children, defendant replied that he did not care about their
feelings since she did not care about his.
He then tossed G.P.’s new cell phone across the street, breaking
it. Defendant said that he would snap
her neck or cave in her face if she told anyone about the incident.

Another incident
took place at a Wal-Mart parking lot about one to two weeks later. Defendant got very upset with G.P., grabbed
her by the hair, hit her on the head, and slammed her head against the side
window. He kept yelling at G.P. to shut
up and stop crying or he would leave her black and blue and bloody all over the
parking lot.

Defendant made
similar threats at their home between the Wal-Mart incident and May 28, 2010. G.P. did not tell the authorities about these
incidents because defendant had threatened to kill her, or himself, if she
told. G.P. talked to defendant about
having him move out, but defendant said he would kill G.P. or himself if she
ever tried to make him leave.

On the evening
of Friday, May 28, 2010,
defendant confronted G.P. in the living room after finding an old Valentine’s
card from Chris in her bedroom drawer.
After G.P. told defendant she had forgotten it was there, he took a step
back, balled up his fists, and took a swing at G.P., just missing her head, and
then walked out of the house for a few minutes.
On his return, defendant grabbed G.P. by the hair and threw her to the
ground. Defendant told G.P. he would
snap her neck in two if she was lying or cheating. He also told G.P. that he wanted her to
acknowledge having sex with the man or he would cave her face in. G.P., crying, repeatedly begged defendant not
to hurt her, and told him over and over that she had not cheated.

Defendant and
G.P. walked to their bedroom after G.P.’s sister came out and asked what they
were doing. The argument continued in
the bedroom’s bathroom while G.P.’s two-year-old daughter slept on their
bed. Defendant reiterated his threats,
and asked G.P. whether she cheated on him.

When defendant
left the bathroom, he told G.P. that he wanted to have sex with her. When G.P. said “no,” defendant replied he was
going to have sex with her no matter what she said. G.P. repeatedly told defendant “no,” and
resisted as he pulled off her pants and underpants. G.P. covered herself with her hand, but
defendant pushed her hand away, forced her onto the bed, and had intercourse
with her. G.P. was crying and tried to
cover herself, but defendant put his hands around her throat and threatened to
snap her neck in two if she did not shut up.href="#_ftn2" name="_ftnref2" title="">[2]

stopped when G.P. said her stomach hurt and she needed to use the
bathroom. He allowed her to get up and
go to the bathroom; when she was done, defendant ordered G.P. back to bed after
which he continued the assault. G.P.
cried herself to sleep when defendant finished.

G.P. did not
tell her mother, sister or brother about the assault before they left the house
on the following morning, May 29,
2010, because of defendant’s threats. While she was in the bathroom getting ready
to shower, defendant told G.P. he was going to get some sex and did not care
how. Defendant got very upset when G.P.
told him no; he grabbed G.P. by the hair, put his other hand around her throat,
and began yelling at her. Overcoming
G.P.’s resistance, defendant pulled her bottoms down and put her hands on the
toilet. When G.P. tried to push
defendant away, he pushed her against the wall heater, burning her.

As G.P.
screamed, her two-year-old daughter tried to get into the room.href="#_ftn3" name="_ftnref3" title="">[3] Defendant told the child that her mommy was
fine and to close the door, sit down, and watch cartoons. He then told G.P. to shut up or he would hold
her face against the wall heater.

As defendant
pulled G.P.’s hair and bent her back over, he called her dirty, a “hoe,” and
said he was disgusted with her. G.P.
cried, told defendant “no,” and tried to block him, but defendant had
intercourse with G.P. against her will.
G.P. was bent over the toilet with her hands on the toilet seat as
defendant raped her. Since the shower
was running throughout the assault, the bathroom became very steamy and
slippery, causing G.P. to bang her head against the toilet. Defendant grabbed G.P. by the arm and threw
her in the shower when he finished.

When G.P. got
out of the bathroom, defendant was lying face down on the bed, crying. G.P. got her computer from the living room,
and returned to the bedroom to be with her daughter. She did not try to escape because her brother
had taken the only available car.

G.P. heard
defendant rummaging in the kitchen and then he entered the bedroom with a
kitchen knife in his hand. He grabbed
G.P. by the hair and threw her on the floor, into a corner of the bedroom. Holding the knife to her neck, defendant told
G.P. he would kill her if he found she was lying to him, and that he should
kill her right now. G.P. screamed and
cried for defendant to stop, while her two-year-old daughter screamed and
cried, and said, “Friend, stop.”

Defendant swore
at G.P.’s daughter and told her to shut up.
He told G.P. that if her daughter did not shut up he would make the girl
shut up. G.P. begged for her life,
telling defendant over and over that she was not lying to him. Defendant eventually stood up, swore, and
punched a picture of G.P.’s daughters on the wall, cutting his hand. He said that he could not stand the sight of
G.P.’s daughters because they looked like their fathers.

Defendant then
sent text messages to G.P.’s mother.
Defendant’s texts included the messages:
“You a f[-ing] hater. But try me
today because I got something ready for you and whoever,” and “You want
problems? Okay. Im’a show you problems.” When he finished, defendant asked G.P. to
call her mother. He said that if G.P.’s
mother said anything about the text he sent her, there would be a bloodbath in
the house, he would beat her mother’s face bloody and blue, and cave it

G.P. then tried
to call her mother from outside the house.
When she failed to contact her mother, defendant came outside with the
knife and told G.P. to get inside. G.P.
then went inside and called her mother, telling her not to respond to the text
defendant had sent. G.P. next talked to
her father, answering a series of yes or no questions as defendant looked
on. Defendant then picked up the phone,
and told G.P.’s father that “if the situation escalated at all that
. . . things were going to get worse” and he would kill G.P., the
two-year-old child, and himself. G.P.’s
family reacted by calling 911 and Chris.

A few minutes
after the phone call, G.P. heard Chris and several other people at the
door. When Chris told defendant to open
the door, defendant ordered G.P. to make the man leave or he would kill G.P.
and her daughter. Chris kept banging on
the door, and defendant dragged G.P. by the hair as she held her sleeping
daughter in her arms. He threw G.P. on
the floor, took her by the neck, and threatened a bloodbath if she did not get
Chris to leave. Defendant then called
911 and told the operator he would kill “everyone in here” and there would be
“dead bodies if you don’t get here in about 2.9 seconds.”

Police officers arrived at 4:55 p.m.
and saw several very upset people outside the house yelling and banging on the
door. Inside the house, defendant yelled
back: “There’s about to be a murder in
here if you don’t go away.” An officer unsuccessfully
ordered defendant to open the front door.
While trying to pry open a security door at the back of the house, the
officer looked through a window and saw defendant holding a knife. The officer drew his firearm and ordered
defendant to drop the knife. Defendant
retreated, and G.P. opened the door and fled.
The officer entered and found defendant, kneeling on the floor.

testified that he broke the cellular phone after discovering text messages from
Chris, but denied assaulting G.P. He
denied any altercation took place at Wal-Mart.
He was upset when he discovered the Valentine’s Day card from Chris, but
did not threaten or sexually assault G.P.
Instead, G.P. initiated the sexual activity, and they engaged in
consensual sex while her younger daughter slept on the bed. G.P. got angry at defendant the following
morning when he said that he was going to Reno.

Defendant armed
himself with a knife for protection against Chris, who tried to fight him a few
months before the incident. He called
911 so the police would save him from Chris; he told the operator he would kill
G.P. and her daughter to ensure the police arrived quickly.


I. The Excluded

contends he was denied his due process right to a fair trial when the trial
court excluded a police recording from his capture. We disagree.

A. Background

testified that on May 29, 2010,
he armed himself with a knife and threatened to kill G.P. and her two-year-old
daughter to prevent Chris (the child’s father) and a group of people outside
the house from assaulting him. On
cross-examination, defendant said he dropped the knife when the police entered
the house because he now felt safe. The
prosecutor then asked defendant if he told the officers that he dropped the
knife because he felt safe, and defendant admitted he did not. Next, the prosecutor asked defendant whether
he told the officers: “I went to the
back door to make sure it was locked.
That is when I looked and saw the gun pointed at me and [the]
badge. That is why I dropped the
knife.” Defendant admitted he did not
say he felt safe, but that “It was just a brief statement, sir, but I did feel
safe at that point.”

In response to
the prosecutor’s questions regarding whether he was a victim, defendant said,
“I felt like a victim, yes, when those people were coming and attacking me I
felt under attack. So I did feel like a
victim, yes.” The prosecutor asked
defendant that if he felt like a victim, why he got on his knees and put up his
hands to the officer. Defendant
said: “Because he was pointing a gun at
me.” Next, the prosecutor asked: “Did you tell him immediately, officer, you
got the wrong person, I’m the victim here?”
Defendant replied, “No. It was
through the sliding door, sir.” The
prosecutor asked defendant whether he told the officers they have the wrong
person, that defendant was the victim, when they entered with guns pointed at
him. Defendant said: “Yeah, I tried to let—I tried to let the
officers know that there—I’m under attack and such things like that, but they
kept telling me to shut up, and don’t talk, and don’t say nothing.”

During redirect
examination, the defense sought to introduce a recording consisting of a video
from the dashboard camera of one of the police cars at the scene and an audio
recording from an officer’s microphone.
Defense counsel asserted that the recording showed defendant telling
officers there were people coming at him and he was acting in
self-defense. Counsel argued this statement
contradicted what the prosecutor said defendant did not do. Although the parties previously agreed not to
play the tape, counsel argued the prosecution opened the door by “insinuating”
that defendant “did not say anything to those first arriving officers.” The prosecutor replied that he asked
defendant whether he said he was a victim “immediately when the officer came
in,” and that some time had passed between the officer’s entry and defendant’s
statement on the tape.

The recording
was played for the trial court. Defense
counsel described the statement in greater detail, relating that defendant told
the officers: “She had her baby dad
so—her baby dad was there so I grabbed the knife. He came over and baby dad had come over
before. I didn’t rape her.” The trial court ruled that defendant never
referred to himself as the victim in the recording, and that the audiotape
would not be admitted.

B. Analysis

Defendant argues
the recording was admissible because it supported his claim that he armed
himself with a knife out of fear from Chris, and tended to impeach G.P.’s
account. He asserts the trial court’s
failure to admit the recording violated his due process right to present

Defendant has
the constitutional right to present
on his own behalf. (>Crane v. Kentucky (1986) 476 U.S.
683, 690 [90 L.Ed.2d 636, 645].)
However, defendant’s right to present evidence contemplates the
presentation of evidence that has significant probative value. “‘“[T]he ordinary rules of evidence do not
impermissibly infringe on the accused’s [constitutional] right to present a
defense. Courts retain . . . a
traditional and intrinsic power to exercise discretion to control the admission
of evidence in the interests of orderly procedure and the avoidance of
prejudice.”’” (People v. Lawley (2002) 27 Cal.4th 102, 155.) A defendant does not have the right to an
unfettered presentation of any possible relevant evidence without regard to the
mandate of Evidence Code section 352. (>People v. Reeder (1978)
82 Cal.App.3d 543, 553.)

Evidence Code
section 352 states: “The court in its
discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”

A trial court’s
ruling based on Evidence Code section 352 “will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of
justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Having watched
and listened to the recording in question, we conclude the trial court did not
abuse its discretion in declining to admit it.
The recording begins at 16:56:22
on May 29, 2010, with
officers clearing onlookers from the front of the house. At 16:56:57,
G.P. is heard screaming and her young child crying, as an officer yells at
defendant to open the door. An officer
states that defendant has a knife at 16:57:15. At 16:57:40,
an officer says to search him, and G.P. is seen in front of the house at 16:57:52.
Defendant gives the statement counsel sought to introduce at 17:02:26, in response to an officer asking him
what happened.

It is clear that
the recording does not contradict what the prosecutor sought to elicit from
defendant on cross-examination. The
prosecutor got defendant to admit he did not tell officers he was the victim
immediately after they entered the home and found him. Defendant first encountered the officers at 16:57:40, when an officer gives the command to
search him. The statement he sought to
admit comes at 17:02:26, nearly five minutes

Although it does
not contradict the prosecutor’s line of cross-examination, the statement has
some minimal probative value as a prior consistent statement to defendant’s
trial testimony that he was a victim.
However, this minimal probative value is outweighed by the recording’s
strong potential for prejudice and confusion.
The audio quality of the recording is poor—there are extended segments
with no audio and other portions are difficult to understand. It is also potentially confusing to the
viewer, who sees a static shot from the patrol car, while hearing intermittent
audio from an officer who is usually off screen. Most importantly, the recording contains
highly inflammatory material—G.P.’s and her child’s screams, officers yelling
and using profanities to get defendant to open the door, and G.P. running from
the house with her child in her arms.

The best tool
for addressing an item containing both relevant and prejudicial
evidence—redaction—is unlikely to be effective here. Showing no more than defendant’s statement
takes that statement out of context, thus depriving the jury of knowing when it
was made in relation to defendant’s initial encounter with the police. In light of the minimal probative value of
the recording and the clear risk of prejudice and confusion, the trial court
was well within its discretion to exclude it.

It is true that
a ruling correctly excluding evidence under Evidence Code section 352 can
violate a defendant’s due process right to present evidence. Evidence Code section 352 “must yield to a
defendant’s due process right to a fair
and to the right to present all relevant evidence of >significant probative value to his or
her defense.” (People v. Cunningham (2001) 25 Cal.4th 926, 999.) The evidence here was not of significant
probative value, and was not critical to the defense, since defendant already
testified that he was the victim. Not
allowing defendant to use a potentially confusing and inflammatory recording to
buttress this point does not violate due process.

II. Section 654

Defendant asked
the trial court to stay sentence on counts four (corporal injury on a
cohabitant), five (false imprisonment), and six (assault with a deadly
weapon—knife) pursuant to section 654.
The trial court imposed concurrent sentences on all three counts.

contends the trial court should have stayed sentence on counts four through
six. He argues that these crimes arise
from an indivisible course of conduct—keeping G.P from leaving the home—and the
trial court therefore should have stayed sentence on all three counts. He is wrong.

Subdivision (a)
of section 654 provides, in pertinent part:
“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”

Section 654
prohibits multiple punishments for a single act or indivisible course of
conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this statute is to prevent
multiple punishment for a single act or omission, even though that act or
omission violates more than one statute and thus constitutes more than one
crime. Although . . . distinct
crimes may be charged in separate counts and may result in multiple verdicts of
guilt, the trial court may impose sentence for only one of the separate
offenses arising from the single act or omission—the offense carrying the
highest punishment.” (>People v. Hutchins (2001)
90 Cal.App.4th 1308, 1312.)

As the
California Supreme Court has explained, “‘Whether a course of criminal conduct
is divisible and therefore gives rise to more than one act within the meaning
of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.’” (>People v. Rodriguez (2009)
47 Cal.4th 501, 507, italics omitted.)

In reviewing
whether the trial court erred in failing to apply section 654 to a case
involving multiple punishments, we are mindful that “the law gives the trial
court broad latitude in making this determination. Its findings on this question must be upheld
on appeal if there is any substantial evidence to support them.” (People
v. Hutchins
, supra,
90 Cal.App.4th at p. 1312.)

Defendant does
little more than make the bare assertion that the three offenses were committed
with one objective—to prevent G.P. from leaving the home.href="#_ftn4" name="_ftnref4" title="">[4] The three crimes have separate
objectives. Defendant’s jealousy and
anger at G.P. for having contact with Chris was clearly one intent behind his
choking her in count four. Thus one
objective of this crime was to inflict pain on G.P. for her alleged
unfaithfulness to defendant. Count six,
the assault on G.P. with a knife, had an additional objective, deterring Chris
and his cohorts from entering the house.
One objective of the false imprisonment in count five is to keep G.P.
from reporting the rapes.

Since the counts
had different objectives, substantial evidence supports the trial court’s


The judgment is


We concur:

ROBIE , Acting P. J.



name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code in effect at the time of defendant’s sentencing on December 3, 2010.


name="_ftn2" title="">[2] This assault took place while G.P.’s
two-year-old daughter slept on the same bed.


name="_ftn3" title="">[3] The record does not indicate the whereabouts
of G.P.’s four-year-old daughter. The
child endangerment allegation refers to G.P.’s two-year-old daughter, who was
fully alert and awake during the events of May 29, 2010.


name="_ftn4" title="">[4] Defendant also misstates the law by asking
for a stayed sentence on all three counts.
If the three crimes were part of an indivisible course of conduct, we
would stay sentence only on the two offenses with the lesser sanctions.

Description Following a jury trial, defendant Vernon Karl Medler was convicted of two counts of rape (Pen. Code, § 261, subd. (a)(2)),[1] two counts of criminal threats (§ 422), corporal injury to a cohabitant (§ 273.5, subd. (a)), false imprisonment (§ 236), assault with a deadly weapon (§ 245, subd. (a)(1)), and child endangerment (§ 273a, subd. (a)), with enhancements for personally using a deadly weapon (former § 12022, subd. (b)(1)). After initially sentencing defendant to 17 years in state prison, the trial court recalled the sentence to impose a 14-year term.
On appeal, defendant contends the suppression of a police video denied him a fair trial, and concurrent sentences on the corporal injury to a cohabitant, false imprisonment, and assault with a deadly weapon counts violated section 654. We shall affirm.
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