Opinion
A147106
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. ERNEST NEAL CAPEL, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR01504950)
Ernest Neal Capel, Jr., pled guilty to false imprisonment of his mother during a domestic dispute. Capel was presumptively ineligible for probation and sentenced to a three-year upper prison term. Capel challenges his sentence arguing that, due to his mental condition, the court should have found his was an unusual case so as to overcome the presumption, and the court erred in imposing the upper term. We affirm.
I. BACKGROUND
On October 27, 2015, Capel was charged with elder abuse (Pen. Code, § 368, subd. (b)(1)). According to a probation report, Capel's mother, Dawn V., contacted police on October 23 to report that Capel was "5150" and trying to kill himself. When police arrived, Dawn said Capel smeared peanut butter on her face and in her hair, threw a lighter at her (striking her forehead and causing a visible abrasion), and broke dishes in his bedroom. When Dawn tried to stop Capel, he pushed her into the hallway and placed his arm around her throat. Dawn later reported that Capel pointed a five-inch knife at her and said, "We can't live like this anymore; one of us has to die." Dawn replied, "Give me the knife and I'll kill myself for you," and Capel ran out of the house saying, "Oh my God, what have I done, what have I done? What have I become?" Later, after Capel pushed Dawn and fractured her rib, she called the police.
Presumably this was a reference to Welfare and Institutions Code section 5150, which authorizes 72-hour detention and evaluation of persons who, due to a mental health disorder, are a danger to themselves or others.
At the time of the incident, Dawn was about 65 years old, terminally ill, and alone with Capel in the residence. Capel claimed Dawn had dementia. She declined medical attention when the police arrived but said she was concerned for her safety as Capel was "so close to killing [her] or [her husband]." Dawn apparently had a restraining order against Capel but nevertheless allowed him to live with her.
The police found Capel standing in the backyard. He said, "I'm not getting arrested for something I didn't do. You're going to have to shoot me. I'm not going with you." He approached but did not surmount a rear fence. He said he did not like police, who were all "liars, cheats and thieves." He said Dawn was crazy and had a history of making false reports against him. He wanted to file a complaint against her. While being escorted to a patrol vehicle, he twice sat on the ground and refused to cooperate, but he ultimately complied.
Following the incident, Dawn told the probation department that Capel had been diagnosed with borderline schizophrenia, and she feared he was suffering a mental breakdown during the offense. Earlier in the year, he made threats and kicked in doors, started using heroin, and resumed using methamphetamine, becoming increasingly agitated and verbally abusive. She suspected Capel strangled 30 baby chicks she found dead in her back yard and punctured the tires of their vehicle, although Capel blamed both incidents on neighbors. Capel once threatened to burn the house down when she was away, and she returned to find him unconscious with a can of gasoline in the house. Capel recently started associating with criminals, and a couple days after Capel's arrest someone came by the house seeking to sell him a gun. Dawn wanted Capel to get mental health services so he could live independently. She claimed, "I must have made a million calls out of state trying to get him mental health services."
Capel told the probation department he had been diagnosed with depression and prescribed Remeron. He reported alcohol abuse from about 2003 to 2008, and 2010 to 2013, but said he had since abstained. He was a "pot head" from about 1997 to 2004; experimented with ecstasy and psilocybin mushrooms; illicitly used opiate prescription painkillers while injured several years previously; started using heroin about six months before his arrest; and sporadically used methamphetamine since about 2001. Recently he used about a gram of methamphetamine every other day, with his last use on the day before his arrest. He completed a substance abuse treatment program in 2012, and did not believe he needed further treatment.
Capel had one felony (2011) and three misdemeanor (2002-2003) convictions for driving under the influence of drugs or alcohol (Veh. Code, § 23152); a 2003 misdemeanor conviction for driving with a suspended license (Veh. Code, § 14601.5, subd. (a)); a 2005 misdemeanor conviction for drug possession (Health & Saf. Code, § 11377, subd. (a)); a 2007 misdemeanor conviction for public intoxication (Pen. Code, § 647, subd. (f)); a 2010 misdemeanor conviction for resisting or obstructing a police officer (id., § 148, subd. (a)(1)); and a 2012 felony conviction for corporal injury (domestic violence) (id., § 273.5, subd. (a). Between December 31, 1997, and September 27, 2011, Capel had been booked into Humboldt County Correctional Facility on 25 occasions, often for public intoxication. His felony probation on two cases was terminated unsuccessfully in 2013, following three probation violations. His "closing probation file [stated], 'Mr. Capel is not a good candidate for future grants of probation. He took no responsibility for his actions and accused probation of forcing him to join [a] gang and become tattooed to survive in prison. He appeared to miss the connection between his actions and his consequences."
Pursuant to a plea agreement, Capel pleaded no contest to a new charge of false imprisonment (Pen. Code, § 236) and the elder abuse charge was dismissed. The probation department recommended denial of probation and imposition of an upper term sentence. The court found Capel to be statutorily ineligible for probation absent unusual circumstances because he had two prior felony convictions. (id., § 1203, subd. (e)(4).) Capel asked the court to find the case unusual based on Capel's mental condition, and to grant him probation with an order to participate in a residential treatment program. The prosecutor opposed a grant of probation, but recommended the court require Capel to obtain a mental health assessment and follow the resulting recommendations as a condition of supervised release. Dawn told the court that schizophrenia ran in their family; Capel had been prescribed Haldol for borderline schizophrenia, but it "pickled his brain"; he suffered a head injury that might have exacerbated his mental problems; he only recently became heavily involved in intravenous drug use; and he needed mental health treatment but would not admit it and would not seek help on his own.
The court found Capel's case did not present unusual circumstances. In selecting a term of imprisonment, the court found "the aggravating factors outweigh the mitigating factors. There are no mitigating factors. But in aggravation, we have a few. We have rule 4.421(a)(1), the crime did involve a threat of great bodily harm disclosing a degree of cruelty or callousness. We have rule 4.421(a)(3), the victim was particularly vulnerable. We have rule 4.421(a)(11), the defendant took advantage of a position of trust or confidence to commit the acts. And rule 4.421(b)(5), Mr. Capel's prior performance on probation has largely been unsatisfactory." The court imposed the three-year upper term, with 18 months to be served in custody and 18 months on mandatory supervision. The court agreed to add a mental health assessment, and Capel's adherence to any resulting recommendations, to the conditions of mandatory supervision.
All rule references are to the California Rules of Court.
II. DISCUSSION
Capel challenges only his sentence on appeal. A. Denial of Probation
Capel first argues the trial court erred in declining to find that his case was unusual so as to overcome his presumptive ineligibility for probation. We have no difficulty affirming the trial court's ruling.
Penal Code section 1203, subdivision (e)(4) provides that, "Except in unusual cases where the interests of justice would be best served if the person is granted probation, probation shall not be granted to [¶] . . . [¶] . . . [a]ny person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony." Rule 4.413(c) lists facts that "may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate." Facts that might "limit[] [a] defendant's culpability" include: "The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation." (Rule 4.413(c)(2)(B).)
"Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely 'may indicate the existence of an unusual case.' (Rule 4.413(c), italics added.) This language indicates the provision 'is permissive, not mandatory.' [Citation.] '[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.' " (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) " '[I]f the statutory limitations on probation are to have any substantial scope and effect, "unusual cases" and "interests of justice" must be narrowly construed,' and rule 4.413 'limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced.' " (Ibid.)
" 'The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion.' [Citation.] The trial judge's discretion in determining whether to grant probation is broad. [Citation.] . . . Generally, ' " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citations.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " ' " (People v. Stuart, supra, 156 Cal.App.4th at pp. 178-179.)
Capel argues the trial court erred by not declaring his case unusual based on his mental condition. (See rule 4.413(c)(2)(B).) He claims he had a lengthy personal and family history of mental illness, and the facts of his offense suggested it was caused by mental illness. Because he had never had access to long-term treatment, he argues, there was a likelihood he would respond to treatment.
We are not persuaded. First, the evidence of Capel's mental illness was anecdotal and conflicting. Dawn claimed Capel had been diagnosed with borderline schizophrenia, but Capel reported only a diagnosis of depression. No medical records were presented to the court. Second, there was substantial evidence that Capel's criminal offenses were driven primarily by substance abuse rather than mental health issues. Capel reported lengthy and extensive drug and alcohol abuse, and Dawn connected his most recent erratic and violent behavior to drug abuse. Capel argues he might have been suffering from a drug-induced mental health condition that would respond to treatment, but this argument is purely speculation. The record includes no professional assessment of Capel's mental health. In any event, even if the court suspected a drug-induced mental health problem, the court could reasonably have found there was not a "high likelihood" that Capel would respond favorably to treatment given Capel's years-long admitted history of poly-substance abuse, and Capel's insistence that he did not need further substance abuse treatment. Capel's poor performance history on probation also supported an inference that he was not a good candidate for treatment while on probation. The trial court did not abuse its discretion in finding this was not an unusual case such that Capel should be deemed eligible for probation.
As noted, the court required a mental health assessment as a condition of mandatory supervision in the split sentence. --------
We also note nothing in the record indicates the court would have exercised its considerable discretion in favor of a grant of probation, even if it found Capel eligible. (See People v. Moran (2016) 1 Cal.5th 398, 402 [" '[p]robation is not a right but a privilege' "].) "[I]n most circumstances the trial court has broad discretion to choose probation when sentencing a criminal offender. A reviewing court will defer to such choice absent a manifest abuse of that discretion." (Ibid.) B. Imposition of the Upper Term
Capel also argues the trial court erred in imposing the upper term for his offense. The People contend this argument is forfeited because Capel failed to challenge the upper term at sentencing. Capel responds that the failure to object amounted to ineffective assistance of counsel. We address the issue on the merits and conclude there was no trial court error, which necessarily disposes of any ineffective assistance claim. (See People v. Norman (2003) 109 Cal.App.4th 221, 230 [forfeited issue may be addressed on merits to forestall a habeas corpus claim].)
"In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison or a term pursuant to [Penal Code section 1170,] subdivision (h) of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including . . . probation . . . . In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council." (Pen. Code, § 1170, subd. (a)(3).) "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . ." (Id., subd. (b); see id., subd. (c) ["[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing"]; rule 4.420(e) ["reasons for selecting one of the three authorized terms of imprisonment referred to in section 1170[, subdivision] (b) must be stated orally on the record"].)
"In exercising his or her discretion in selecting one of the three authorized terms of imprisonment referred to in section 1170[, subdivision] (b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Rule 4.420(b).) Rule 4.421 provides a nonexclusive list of aggravating circumstances the court may consider, and rule 4.423 provides a nonexclusive list of mitigating circumstances. The choice of a term under this sentencing scheme is reviewed for abuse of discretion. "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.] . . . [A] trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.] A failure to exercise discretion also may constitute an abuse of discretion." (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
The trial court did not abuse its discretion. First, Capel does not challenge the court's reliance on rule 4.421(b)(5)—"defendant's prior performance on probation . . . was unsatisfactory"—and this factor is amply supported by the record. Not only did Capel fail to complete probation on two felony offenses, but his then-probation officer opined that he would not be a good candidate for probation in the future. This aggravating factor alone supported the trial court's imposition of the upper term.
In any event, the other three aggravating factors cited by the trial court are also supported by the record. Capel argues the court erred in relying on rule 4.421(a)(1): "The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." Capel claims he used only minimal force to restrain Dawn in the hallway of her home, and he notes Dawn declined medical attention. Dawn, however, told police that Capel placed his arm around her throat, pointed a five-inch knife at her, and said "one of us has to die." The court did not abuse its discretion in finding this conduct involved a threat of great bodily harm and showed a high degree of callousness.
Capel also challenges the court's reliance on rule 4.421(a)(3): "The victim was particularly vulnerable." He claims that Dawn's status—"65 years old . . . [with] an unspecified illness . . . at home"—was a far cry from the "sleeping, unconscious or defenseless" victims whom appellate courts have ruled were appropriately found "particularly vulnerable." He argues Dawn's decision to confront Capel when he started breaking dishes, rather than to immediately call police, shows she was not particularly vulnerable. The trial court acted within its discretion in finding Dawn particularly vulnerable. She was elderly and in poor health: although she did not identify her ailment, she said she had been recently hospitalized and found it hard to even walk down the hall to check on Capel. Capel claimed Dawn had dementia, which would have made her even more vulnerable to manipulation and abuse. Dawn's delay in calling the police could be viewed as evidence of fear and vulnerability to Capel rather than gumption, as Capel suggests. In any event, a vulnerable victim who stands up to an assailant against the odds is not thereby made less vulnerable. The trial court acted within its discretion in finding Dawn particularly vulnerable regardless of the differences between this case and other reported cases.
Finally, Capel challenges the court's reliance on rule 4.421(a)(11): "The defendant took advantage of a position of trust or confidence to commit the offense." He argues there was no evidence Dawn trusted him so there could be no evidence that he betrayed such trust. Dawn, however, apparently allowed Capel to live with her despite having a restraining order against him. She entrusted her home to his care, yet he threatened to burn it down and may have taken initial steps to do so. The fact Dawn's trust in Capel had already been betrayed and thus may have eroded as of the date of the incident leading to Capel's arrest does not undermine the court's finding that Capel violated Dawn's trust when he attacked her while continuing to live in her home. The court did not abuse its discretion in finding this aggravating factor supported imposition of the upper term.
Capel also argues the trial court "failed to meet its obligation to go beyond a casual reading of four factors in aggravation . . . without distinguishing Mr. Capel's offense as anything other than the bare minimum required for a conviction for false imprisonment with violence." However, since the determinate sentencing law was revised in 2007 in response to Cunningham v. California (2007) 549 U.S. 270, the trial court's statement of reasons "no longer must 'include a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation.' " (People v. Sandoval, supra, 41 Cal.4th at p. 847.) The trial court's statement of reasons in this case, quoted ante, was sufficient.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.