Opinion
A148968
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ELMER ARISTIDES MANCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 15SF000098A)
Following a jury trial, defendant Elmer Aristides Mancia was found guilty of cruelty to a child by inflicting injury, making criminal threats, attempting to dissuade a witness, and disobeying court orders. The court sentenced him to a total of six years of incarceration. However, the court imposed sentences based on the numbering of the counts in the amended complaint, rather than the counts in the information. Defendant appeals, challenging the denial of his motion for a new trial and claiming sentencing error. Defendant further contends he was rendered ineffective assistance of counsel at sentencing. We remand with directions to (1) resentence defendant on counts 1 through 5 and 8 through 9 as they appear in the information; (2) sentence defendant on counts 6 and 7, and (3) stay sentences for counts 5 and 9 under Penal Code section 654. We affirm in all other respects.
All counts referenced herein refer to the counts in the information unless otherwise noted.
All statutory references are to the Penal Code.
I. BACKGROUND
After separating from his son's mother, defendant obtained full custody of his son (minor). Defendant and minor lived together in a trailer with three other adults. Minor's mother and siblings resided in another trailer nearby.
While in the trailer they shared, minor claimed defendant hit him with a closed fist beneath his left eye. Minor also stated defendant hit him on the arm the following day. Minor did not attend school for two days due to bruising. Upon his return to school, minor informed a school therapist defendant had hit him. The therapist reported this to the police, who then spoke with minor. After this incident, minor moved in with his mother and a restraining order was issued against defendant.
Despite the restraining order, defendant made contact with minor on repeated occasions. He first approached minor at soccer practice. Defendant informed minor he would be deported to El Salvador if he was found guilty of hitting minor.
Next, defendant approached minor at the trailer park where they both lived. He informed minor he had created a fake Facebook profile to send messages to minor. Defendant had a phone on him at that time. He then proceeded to send minor a Facebook message threatening his life if minor did not say "eight people [were] gathering around me at Hoover Park saying they're going to kill me" and "th[ose] people told me to make up a lie that my dad hit me in the face." Defendant subsequently informed both minor's mother and the police that unidentified people were threatening minor on Facebook unless minor told police defendant had hit him. Minor had dinner with defendant, his mother, and his stepfather to discuss these alleged threats. At dinner, minor stated people threatened to kill him if he did not say defendant had hit him. As a result, minor's mother took him to the police department to report this threat. However, at the end of the conversation with the police, minor admitted no one had threatened him.
A few months later, minor overheard an argument between defendant and his stepfather. Defendant stated he was going to burn down the trailer where minor and his family lived. The next day, defendant approached minor at the trailer park. He told minor to "be careful" because he had two grenades and two guns, and displayed a gun to minor. Minor disclosed this incident to his school therapist, who then contacted the police.
Defendant was charged by information with one felony count of making criminal threats (§ 422, subd. (a); count 1), two counts of misdemeanor cruelty to a child by inflicting injury (§ 273a, subd. (b); counts 2 and 3), two counts of misdemeanor attempting to dissuade a witness (§ 136.1, subd. (a)(2); counts 4 and 8), and four counts of misdemeanor disobeying a court order (§ 166, subd. (a)(4); counts 5, 6, 7, and 9).
At trial, both sides presented witnesses who testified regarding minor's truthfulness. The prosecution offered minor's mother and a school therapist, both of whom testified minor was generally truthful. A police officer involved in the investigation also testified minor's accounts were consistent, with only minor discrepancies. Conversely, minor's paternal grandmother, stepgrandfather, sister, and half brother all testified minor frequently lied. The stepgrandfather, for example, recounted an instance where minor had lied about him touching minor's buttocks. A friend of minor also testified minor was "a little bit of a liar," although he never lied about important things.
Following trial, the jury returned a guilty verdict on all counts. The court sentenced defendant to a total of six years of incarceration—the midterm of two years in state prison for making criminal threats, and county jail terms of six months each on the two child cruelty counts, one year each on the two counts of attempting to dissuade a witness, and six months each on two of the counts for disobeying a court order. The court did not sentence defendant on the remaining two counts of disobeying a court order.
After the verdict was returned, minor disclosed to a school employee he had experienced inappropriate sexual contact from a third party. The school reported this information to the police. Minor stated an individual residing in defendant's trailer (Lopez) sexually abused him on multiple occasions. Minor further stated Lopez threatened him with a knife and instructed him to " 'make up lies' " or else Lopez would hurt him. Minor stated Lopez had asked him to lie because Lopez was being evicted from defendant's trailer. This threat occurred approximately one week before defendant was arrested for hitting minor. During two breaks in the police interview, minor spoke out loud to himself. Minor stated defendant was " 'innocent,' " Lopez instructed him to lie about defendant hitting him, and Lopez made him report defendant. The police subsequently asked minor about these statements. Minor initially confirmed Lopez threatened him unless he lied about defendant hitting him. Upon further questioning, however, minor stated Lopez actually asked him to lie about stealing a phone, and confirmed he told the truth at trial about defendant hitting him.
Defendant subsequently filed a motion for new trial based on this police report. Defendant argued "that since [minor's] statements were believed by the jury to secure the convictions, that further contradictory statements would not have been believed in whole or in part." The court denied defendant's motion, and he appealed.
II. DISCUSSION
Defendant raises three arguments on appeal. First, defendant argues the trial court erred in denying his motion for new trial based on newly discovered evidence, namely the postverdict police report intimating minor had lied about defendant hitting him. Second, he asserts the trial court failed to properly apply section 654 when sentencing him on the misdemeanors. Finally, defendant argues he was rendered ineffective assistance of counsel at sentencing because his counsel did not advocate for a more lenient sentence. We address these arguments in turn. A. Motion for New Trial
Defendant contends the postverdict police report was newly discovered evidence bolstering his defense that minor lied about him and why he did so. The trial court, he argues, thus abused its discretion in denying his motion for new trial. We disagree.
When a party moves for new trial under section 1181 based on newly discovered evidence, the trial court must consider several factors, including: " ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) "A new trial motion based on newly discovered evidence is looked upon with disfavor. We will only disturb a trial court's denial of such a motion if there is a clear showing of a manifest and unmistakable abuse of discretion." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.)
At trial, defendant presented testimony from five witnesses regarding minor's truthfulness, all of whom testified minor often lied. Defendant also presented evidence that minor sometimes lied about serious matters, such as falsely claiming his stepgrandfather touched his buttocks. The jury heard this evidence, yet convicted defendant of the charges against him. As such, the police report was merely cumulative evidence of minor's tendency to lie. The jury already heard substantial evidence of the same type, and the trial court did not erroneously deny defendant's motion for a new trial.
Defendant also contends the police report explains his concern about minor's safety. But defendant offers no evidence to suggest he was aware of the sexual assault at that time, or that his concern arose from such assault. Rather, his safety concerns only appear related to the Facebook messages. And evidence regarding those messages was presented in detail to the jury.
Moreover, the police report is not only cumulative of other evidence and testimony offered at trial, but defendant has not demonstrated the report would "render a different result probable on retrial." (See People v. Delgado, supra, 5 Cal.4th at p. 328.) While defendant argues the police report offers a motive for why minor lied, he ignores the section of the police report where minor disavows lying about defendant and reaffirms the truthfulness of his trial testimony. Nowhere does the police report unequivocally state minor lied about defendant's conduct. As a result, we conclude the court did not engage in " ' "a manifest and unmistakable abuse of discretion" ' " in denying the motion for new trial. (Id. at p. 328; see People v. O'Malley (2016) 62 Cal.4th 944, 1017 [no abuse of discretion in denying new trial motion where the newly discovered evidence "would have been, at most, cumulative" to other trial testimony]; People v. Mehserle, supra, 206 Cal.App.4th at p. 1151 [newly discovered evidence was "essentially cumulative . . . and of marginal relevancy"].) B. Sentencing
1. Correction of Abstract of Judgment
The trial court imposed sentences based on the numbering of the counts in the amended complaint. The minute order then noted the sentences imposed based on the numbering of the counts in the information. However, the counts in the amended complaint do not mirror those in the information. For example, count 2 in the amended complaint corresponds to count 9 in the information. Likewise, count 9 in the amended complaint corresponds with count 6 in the information. As a result, the minute order does not accurately reflect the sentences imposed by the trial court. The parties' briefs likewise confuse the counts at issue.
Due to these inconsistencies, the trial court must resentence defendant in order to correlate the sentences imposed with the counts as numbered in the information. (See Cal. Rules of Court, rule 8.155(c)(1) ["on its own motion, the reviewing court may order the correction . . . of any part of the record"].)
Counts 1 and 9, counts 4 and 5, and counts 7 and 8 arose from three instances in which defendant communicated with minor. For each incident, defendant was found guilty of disobeying a court order, as well as either dissuading a witness or making criminal threats. With the exception of counts 6 and 7, the court sentenced him to consecutive terms on each of the other counts. Defendant contends the imposition of consecutive terms violated section 654. Though the Attorney General agrees the court should not have imposed consecutive sentences for counts 1 and 9 or counts 4 and 5, he asserts the court should have imposed consecutive sentences for counts 7 and 8. The Attorney General also notes the trial court erred by not sentencing defendant on counts 6 and 7.
The Attorney General's brief mistakenly refers to these as counts 8 and 9.
As an initial matter, we agree the court erred in failing to sentence defendant on counts 6 and 7. The jury found defendant guilty on these counts. Consequently, the court was obligated to impose sentences. (People v. Alford (2010) 180 Cal.App.4th 1463, 1468 [" 'Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed. [Citations.] Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner; it has no other discretion.' "].) Failure to sentence a defendant results in an unauthorized sentence. (Id. at p. 1473.) The court thus was obligated to sentence defendant on all counts, including counts 6 and 7. However, whether any sentences should have been stayed under section 654 raises a separate question.
Section 654 provides in relevant 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." (Id., subd. (a).) "Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311.) When the crimes were completed with a "single physical act," the defendant may only be punished once for that act. (People v. Jones (2012) 54 Cal.4th 350, 358.) However, if "the case involves more than a single act—i.e., a course of conduct," then the court must "consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives." (Corpening, at p. 311.) "Where a defendant entertains multiple criminal objectives independent of and not merely incidental to each other, he may be punished for more than one crime even though the violations share common acts or are parts of an otherwise indivisible course of conduct." (People v. Blake (1998) 68 Cal.App.4th 509, 512.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence." (Ibid.)
Here, we do not have a single physical act. Defendant's contact with minor—i.e., driving to the park or approaching minor at the trailer park—and his subsequent communication with minor represent distinct physical acts. We agree, however, counts 4 and 5 involved a course of conduct that was "pursued with a single objective," and section 654 applies. Counts 4 and 5 arose from defendant approaching minor at soccer practice and stating he would be deported to El Salvador if found guilty. Because defendant approached minor for the sole purpose of dissuading him from testifying, his course of conduct involved a single intent and objective. Defendant's failure to obey a court order not to contact minor was merely incidental to his effort to prevent minor from testifying. The trial court thus erred by separately punishing him for both convictions. In accordance with section 654, the trial court should have sentenced defendant to one year for attempting to dissuade a witness and stayed execution of the six-month sentence for disobeying a court order. (See People v. Duff (2010) 50 Cal.4th 787, 796 ["when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence"]; People v. Jones, supra, 54 Cal.4th at p. 353 ["accepted 'procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable' "].) Consequently, the court erred when it did not stay execution of the sentence on count 5.
We also agree counts 1 and 9 were based on a course of conduct that was pursued with a single objective. Those counts involved defendant approaching minor and threatening him with two grenades and two guns. Again, defendant's failure to comply with the restraining order was merely incidental to his effort to dissuade minor from testifying. The trial court likewise should have sentenced defendant on count 1, making criminal threats, and stayed the sentence on count 9, disobeying a court order.
The parties, however, disagree as to whether counts 7 and 8 are subject to section 654. Those counts arose from defendant approaching minor at the trailer park, stating he was going to send minor a message from a fake Facebook account, and then later sending minor a Facebook message threatening him harm unless he stated that eight people had threatened to kill him if he did not lie about defendant hitting him. While both events occurred on the same day and in close temporal proximity, they represent multiple objectives which were "independent of and not merely incidental to each other." (People v. Blake, supra, 68 Cal.App.4th at p. 512.) People v. McCoy (2012) 208 Cal.App.4th 1333 (McCoy), cited by defendant, supports this conclusion. In McCoy, the trial court concluded the defendant entered the victim's home in violation of a protective order, left, and then returned and assaulted her. (Id. at pp. 1337-1338.) The trial court concluded the initial arrival was separate from the subsequent assault, despite occurring the same evening. (Id. at p. 1338.) The defendant was sentenced to consecutive terms. (Ibid.) The appellate court affirmed, holding the trial court could have reasonably found the two arrivals were independent of each other based on the facts in evidence. (Id. at pp. 1340-1341.)
Here, as in McCoy, we have two separate encounters although they occurred on the same day. The first contact involved defendant's request to communicate with minor via Facebook in violation of his restraining order. The second contact between defendant and minor was the Facebook message itself, which contained threats against minor. Defendant did not need to communicate with minor prior to sending the Facebook message. Additionally, defendant could have opted not to send the message after speaking with minor. As such, the first contact was not merely incidental to the second. Section 654 does not apply to counts 7 and 8, and the court should impose consecutive sentences for these counts. C. Ineffective Assistance of Counsel
Defendant seeks to reverse his sentence on the ground his appointed counsel rendered ineffective assistance by failing to argue for a more lenient sentence. Defendant asserts his counsel had no legitimate purpose for failing to do so, and such failure fell below an objective standard of reasonableness. We disagree.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540.) The defendant bears a burden that is difficult to carry on appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Reeves (1966) 64 Cal.2d 766, 774.) The appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. "It is well established that a defendant who raises ineffective assistance of counsel on appeal 'must establish deficient performance based upon the four corners of the record. "If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." ' " (People v. Breslin (2012) 205 Cal.App.4th 1409, 1419.)
Here, defendant's prior counsel submitted a sentencing memorandum on his behalf, which sought to reduce his felony conviction for criminal threats to a misdemeanor and obtain a probation sentence on all convictions. This memorandum argued the felony charge for criminal threats should be reduced to a misdemeanor due to the lack of violence or other extreme conduct. In addition, it argued for probation based on 12 of the 17 criteria set forth in California Rules of Court, rule 4.414(a) and (b). Defendant's prior counsel also filed a supplemental sentencing memorandum further advocating in favor of probation. During sentencing, the court noted it reviewed the sentencing memoranda submitted by defendant's prior counsel. And despite being aware of defendant's arguments for a reduced sentence, the court quickly stated it intended to impose a prison term and wanted defendant to "get a taste of prison." The court indicated it was exclusively interested in discussing prison terms. As such, it was appropriate for defendant's then-current counsel to focus his argument on proposing a midterm sentence for count 1 rather than the aggravated term proposed by the prosecutor. In fact, the court sentenced defendant to the midterm. Thus, defendant's counsel was not ineffective simply because he did not repeat what was in the sentencing memoranda, instead focusing on the court's intention to sentence defendant to state prison. (See People v. Thompson (2010) 49 Cal.4th 79, 122 ["Counsel is not ineffective for failing to make frivolous or futile motions."].)
Defendant also failed to demonstrate his counsel's omission was prejudicial. To establish prejudice, the defendant must make a showing "sufficient to undermine confidence in the outcome" that, but for counsel's performance, there was a reasonable probability "the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694.) Defendant has not made such a showing. First, the court indicated it was not open to probation. Nor has defendant demonstrated the court had any inclination to consider a low term for count 1. To the contrary, the court expressly wanted defendant to "get a taste of prison." Second, although his counsel failed to argue that certain misdemeanors were subject to section 654, he concedes the prosecutor agreed—and stated at the sentencing hearing—the misdemeanors should run concurrently. Defendant also does not explain how further argument from his counsel would have had a reasonable probability of altering the court's sentencing. Finally, though counsel failed to highlight mitigating factors, these factors were set forth in the sentencing memoranda. Defendant also made an oral statement at the hearing regarding his lack of past violence, good conduct in jail, and desire to reconnect with his family. The court, however, was unmoved by these presentations, and commented on defendant's lack of remorse. Accordingly, defendant has failed to show that any further argument on these issues would have impacted the court's sentencing decision.
III. DISPOSITION
The matter is remanded for resentencing. On remand the court shall resentence defendant to correlate the sentences imposed to the counts as numbered in the information. Specifically, the trial court shall resentence defendant as follows: (1) sentence defendant on counts 2 and 3 (reflected as counts 3 and 4 in the court's initial sentencing and the amended complaint) to six months in county jail for violating section 166, subdivision (a)(4); (2) sentence defendant on count 4 (reflected as count 5 in the court's initial sentencing and the amended complaint) to one year in county jail for violating section 136.1, subdivision (a)(2); (3) sentence defendant on count 5 (reflected as count 6 in the court's initial sentencing and the amended complaint) to six months in county jail for violating section 166, subdivision (a)(4); (4) sentence defendant on count 8 (reflected as count 7 in the court's initial sentencing and the amended complaint) to one year in county jail for violating section 136.1, subdivision (a)(2); and (5) sentence defendant on count 9 (reflected as count 2 in the court's initial sentencing and the amended complaint) to six months in county jail for violating section 166, subdivision (a)(4). On remand the court also shall sentence defendant on counts 6 and 7, and stay the sentences on counts 5 and 9, pursuant to section 654.
Defendant's sentencing on count 1 will remain unchanged as count 1 in the amended complaint corresponds to count 1 in the information.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.