Opinion
B224708
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK DWORNICZAK, Defendant and Appellant.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephen D. Matthews, and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA063390)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. Lippitt, Judge. Affirmed.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephen D. Matthews, and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Mark Dworniczak appeals from the judgment entered following his conviction by a jury for kidnapping, assault with a firearm, corporal injury to a former cohabitant, making a criminal threat, and possession of a handgun by a felon with true findings he had personally used a firearm in the commission of the offenses. Dworniczak contends the trial court erred by refusing to allow him to recall his victim to testify during the People's case-in-chief. Dworniczak also contends his sentence violates Penal Code section 654 and constitutes cruel and unusual punishment in violation of his federal constitutional rights. We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
In an information filed February 8, 2010 Dworniczak was charged with kidnapping (§ 207, subd. (a)) (count 1), making criminal threats (§ 422) (count 2), assault with a firearm (§ 245, subd. (a)(2)) (count 3), inflicting corporal injury on a former cohabitant (§ 273.5, subd. (a)) (count 4), grand theft (§ 487, subd. (a)) (count 5) and possession of a handgun by a felon (§ 12021, subd. (a)(1)) (count 6). The information specially alleged various firearm-use enhancements (§§ 12022.53, subd. (b), 12022, subd. (a)(1) & 12022.5, subd. (a)) and that Dworniczak had served five separate prison terms for prior felony convictions (§ 667.5, subd. (b)).
2. The Trial
a. The People's evidence
Julee Silvernail testified she and Dworniczak had been in a two-year relationship and had lived together for six to nine months until Dworniczak went to prison in 2006. In September 2009 Dworniczak was staying at a friend's apartment in Reseda. Silvernail, who was no longer in a relationship with Dworniczak but had stayed in contact with him, called Dworniczak the morning of September 22, 2009. Dworniczak, a drug-user, sounded very sick and agreed with Silvernail that she should take him to the hospital.
Silvernail went to the apartment and was let in by Dworniczak's brother-in-law, Jimmy Wright. Dworniczak was lethargic and appeared not to have eaten. He was mumbling and complaining about "things that he felt [were] going on in his house." Silvernail began to clean up Dworniczak's messy room while Wright made some food. When Wright brought Dworniczak the food, Dworniczak became agitated and threw the plate. As Dworniczak became more agitated, making clear he did not want to be around Wright, Wright left the room.
Silvernail tried to coax Dworniczak to get dressed and go with her to pick up her children. Dworniczak got upset and began throwing things. He then retrieved a gun, which was on the bed, and told Silvernail he would not let her leave. He made Silvernail lie face down on the bed, bound her hands and feet with belts, repeatedly struck her and admonished her to be quiet just before putting duct tape over her mouth. At some point Dworniczak removed the duct tape, but again warned Silvernail to be quiet. He said he would shoot Wright if he came to the door and accused Silvernail, Wright and a third person of conspiring against him. Dworniczak also pointed the gun at Silvernail's head and threatened to shoot her if she screamed or made any noise.
Eventually Dworniczak unbound Silvernail and ordered her to help him pack his belongings. While various people came and left the apartment, Silvernail and Dworniczak loaded his property, as well items from the apartment, into Silvernail's car. Silvernail did not ask anyone for help or tell them what was happening because Dworniczak had the gun in his waistband and she believed he would hurt someone.
Once they were finished loading the car, Dworniczak, who had taken Silvernail's car key and cell phone, ordered her to sit in the passenger seat and began driving to Palmdale. During the drive Dworniczak became agitated again, accusing Silvernail of conspiring with Wright to take Dworniczak's drugs and property. He also accused Silvernail of having sex with Wright and repeatedly hit her in the face when she denied it. Finally, to get Dworniczak to stop hitting her, Silvernail falsely told him she had had sex with Wright and that Wright had raped her. Dworniczak continued hitting her anyway and threatened to hit her with the gun. Silvernail began bleeding from the mouth and thought some of her teeth had been knocked out.
After about 40 minutes Dworniczak and Silvernail arrived at Carol Rousey's house in Palmdale. Rousey is the mother of Dworniczak's brother's ex-wife. Silvernail testified Dworniczak explained to Rousey that Silvernail had been beaten up by some people, and asked if she could use the bathroom to clean up. Silvernail testified Rousey replied, "'Well, who did this to you? Because if somebody did that to me, I would put them in jail.'" Silvernail did not respond because Dworniczak had warned her several times not to speak and he was standing next to her with the gun in his waistband.
Silvernail testified that she and Dworniczak drove to Simi Valley after leaving Rousey's house. During the hour long drive Dworniczak continued accusing Silvernail of stealing from him and having sex with Wright and threatened to have "some homegirls" beat her up. He also threatened to kill himself. Silvernail described him as "just losing his mind."
Dworniczak stopped at three houses in Simi Valley. After leaving the third house, Dworniczak stopped at a convenience store to get a telephone card. He did not get out of the car, however, because too many people were there. He then drove to another convenience store and left Silvernail in the car with the keys. Silvernail jumped into the driver's seat and drove away. She flagged down a police officer about a block away. Police officers took photographs of Silvernail's injuries, which were shown to the jury, before transporting her to the hospital.
The next day, September 23, 2009, a Simi Valley police officer found a loaded gun near a retaining wall approximately 75 to 100 yards from the convenience store from which Silvernail had fled. Silvernail stated the gun appeared to be the same one Dworniczak had used.
Rousey, who testified after Silvernail, essentially confirmed Silvernail's description of what had happened at her house. Rousey said Silvernail was "kind of" sniffling and sobbing, appeared upset, had a bloody nose and swollen face and did not speak to her. When Rousey asked what had happened to Silvernail, Dworniczak explained she had been raped and beaten at a party over the weekend. Because it was Monday or Tuesday, Rousey wondered why Silvernail still looked like she had just been beaten. When Rousey asked why they had not called the police, Dworniczak said he did not want to get the police involved. The only real difference between Rousey's and Silvernail's description of what happened is Silvernail testified Dworniczak stood outside the bathroom door while she cleaned up whereas Rousey testified Dwoniczak had been in the living room and the kitchen while Silvernail was in the bathroom.
b. The defense's request to recall Silvernail
Before the People rested, Dworniczak sought to recall Silvernail "for clarification" and to "impeach Miss Silvernail's comments with respect to Jimmy Wright and police reports" based on Rousey's testimony. Defense counsel explained, while Dworniczak was listening to Rousey's testimony, he informed her for the first time that Silvernail had said while they were driving from Palmdale to Simi Valley that she was willing to make a police report against Wright for rape. Defense counsel explained, "Rousey had mentioned the need to call the police or make a report, go down to the station if, in fact, she had been raped or beaten up at this party in Palmdale. And the fact that [Silvernail] said nothing there, but then later, as they were driving to Simi, she made a comment to my client that she would, in fact, go make a police report against Jimmy Wright." The prosecutor objected, arguing the material had been covered during cross-examination of Silvernail and recalling her would be harassment.
The court denied the request, finding the threshold for recalling Silvernail "on something new and material" had not been met. The court explained, "[Silvernail] said it was all basically nonsense in order to get Mr. Dworniczak to stop beating her or whatever. [Silvernail] says she lied to [Dworniczak] to try to pacify him. Whatever it was he wanted to hear, she said what he wanted to hear." "Maybe I'm not following this, but perhaps those statements were made to get him to take her to the police station and then she could get out from underneath the situation . . . ."
Dworniczak did not testify on his own behalf or call any witnesses.
3. The Jury's Verdict and Sentence
The jury found Dworniczak guilty of all the offenses charged except grand theft and found true the firearm enhancement allegations. In a bifurcated proceeding Dworniczak waived his right to trial and admitted the prior felony convictions.
The trial court sentenced Dworniczak to an aggregate state prison term of 25 years four months: A principal term of eight years, the upper term for kidnapping (count 1), plus 10 years for the use of a firearm (§ 12022.53, subd. (b)); a consecutive term of eight months (one-third the middle term) for making a criminal threat (count 2); a consecutive term of one year (one-third the middle term) for assault with a firearm (count 3); a concurrent term of 3 years (the middle term) for corporal injury (count 4); a consecutive term of eight months (one-third the middle term) for possession of a handgun by a felon (count 6); and an additional five years for the prior prison term enhancements pursuant to section 667.5, subdivision (b).
DISCUSSION
1. The Trial Court's Refusal To Allow Silvernail To Be Recalled Did Not Violate Dworniczak's Rights to Due Process, To Confront Witnesses or To Present a Defense
A witness who has been excused from giving further testimony in an action may not be recalled without leave of court. (Evid. Code, § 778; see also Evid. Code, § 774 ["[a] witness once examined cannot be reexamined to the same matter without leave of the court"].) While a defendant has a right under the Sixth Amendment to confront witnesses against him or her and "[c]ross-examination is the principal means by which the believability of a witness and the truth of testimony are tested," the trial court retains "broad discretion . . . to preclude repetitive and unduly harassing interrogation." (Davis v. Alaska (1974) 415 U.S. 308, 316 [94 S.Ct. 1105, 39 L.Ed.2d 347]; People v. Harris (1989) 47 Cal.3d 1047, 1091 ["'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant'"].) We review for abuse of discretion the trial court's decision whether to grant leave to recall a witness. (See People v. Thomas (1992) 2 Cal.4th 489, 542.)
Dworniczak contends the trial court's denial of his request to recall Silvernail was an abuse of discretion and violated his constitutional rights because it prevented him from challenging Silvernail's credibility with new information learned from Rousey. Dwoniczak argues, "The core of [his] defense is that Silvernail lied about what happened to her, and she voluntarily accompanied [Dworniczak]." He insists the court improperly restricted follow-up cross-examination to further show she lied about her "alleged confinement," thereby limiting his ability to confront Silvernail and present a defense.
Dworniczak's argument borders on specious. Rousey's brief testimony did not, as Dworniczak contends, "reveal[] new lines of examination concerning Silvernail's interaction with Rousey and Silvernail's intent to file a police report." Rousey's testimony was largely consistent with Silvernail's, differing only in minor detail regarding Dworniczak's story Silvernail had been beaten by others and where Dworniczak was while Silvernail was in the bathroom cleaning up. (Both Rousey and Silvernail testified Silvernail did not say a word to Rousey.) It appears simply that Rousey's testimony reminded Dworniczak he had failed to tell his attorney Silvernail suggested she file a police report about the rape. The subject of rape, however, was clearly covered during cross-examination, and Silvernail explained she told Dworniczak what she thought he wanted to hear to stop him from hitting her.
To be sure, the mere fact a defendant failed to timely inform his or her counsel of information critical for impeachment purposes may not alone justify denial of a request to recall a witness. Here, however, further cross-examination of Silvernail to establish she said she would file a police report would not impeach her credibility and was not critical to Dworniczak's defense. Silvernail admitted she had falsely told Dworniczak she was raped. Whether she later also lied to him about filing a police report has no bearing on whether she voluntarily accompanied Dworniczak on his assaultive sojourn.
Dworniczak's reliance on People v. Raven (1955) 44 Cal.2d 523, 525-526 for the proposition the trial court abuses its discretion in failing to allow a defendant to recall a witness for impeachment purposes is misplaced. In that case the trial court had erroneously concluded it "was powerless to grant defendant's request" to recall a witness and "[n]othing in the record shows how the court would have exercised its discretion" if it had known it had such discretion. (Id. at p. 526.) There is no such fundamental mistake of law in this case. The trial court acted well within its broad discretion in denying Dworniczak's request to recall Silvernail.
2. Dworniczak's Sentence Does Not Violate Section 654
Section 654 prohibits separate punishment for multiple offenses arising from the same act or from a series of acts constituting an indivisible course of criminal conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Latimer (1993) 5 Cal.4th 1203, 1216.) "'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.'" (Rodriguez, at p. 507; accord, People v. Lewis (2008) 43 Cal.4th 415, 519.)
Section 654, subdivision (a), provides: "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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
Generally, the trial court has broad discretion in determining whether a defendant had multiple criminal objectives independent of, and not merely incidental to, each other for purposes of section 654. On appeal we will uphold the court's express or implied finding a defendant held multiple criminal objectives if it is supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Dworniczak contends the trial court should have stayed imposition of sentence for all the offenses except kidnapping because they all arose out of the same facts and each "was symbiotic and allowed for the commission of the others." That is, possessing a gun, making criminal threats and assaulting and inflicting corporal injury were used to effectuate the kidnapping and the kidnapping gave Dworniczak the opportunity to assault Silvernail and inflict corporal injury. Dworniczak further argues there is no evidence supporting the trial court's inference Dworniczak harbored independent objectives for each offense.
Substantial evidence supports the trial court's implied finding Dworniczak committed a prolonged series of separate offenses against Silvernail: He hit, bound and threatened her while they were at the apartment; he subsequently forced her to drive with him to Palmdale and Simi Valley; along the way, while she was captive in the car, he gratuitously continued to beat her. (See People v. Nguyen (1988) 204 Cal.App.3d 181, 191 ["It is one thing to commit a criminal act in order to accomplish another; [§ 654] applies there. But that section cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense."]; see also People v. Perez (1979) 23 Cal.3d 545, 552 ["[t]o accept . . . a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate [§ 654's] purpose to insure that a defendant's punishment will be commensurate with his culpability"].)
Finally, Dworniczak committed the offense of being a felon in possession of a gun before Silvernail arrived at the apartment. Dworniczak's contention there is no evidence he possessed the gun in his room before Silvernail's visit is belied by her testimony she found him in bed and he picked up the gun off the bed as soon as she tried to coax him to get dressed so they could go pick up her children.
3. Dworniczak Has Forfeited the Argument His Sentence Is Unconstitutionally Cruel and Unusual
Dworniczak has forfeited the argument his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution by failing to raise it in the trial court. (See, e.g., People v. Norman (2003) 109 Cal.App.4th 221, 229 [cruel and unusual punishment arguments must be raised in trial court because they require fact-specific determinations about the offense and the offender]; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
Indeed, although acknowledging the offenses are serious, Dworniczak contends the sentence is nevertheless cruel and unusual because the probation report indicated he was being treated for depression and had a long history of untreated drug abuse. Yet Dworniczak never presented those matters to the trial court. His sentencing memorandum requested only that the court not impose the prior prison term enhancements because Dworniczak had rejected the People's initial plea offer based on bad advice given to him by his parents. We will not entertain a fact-intensive inquiry about Dworniczak's mental health and substance abuse history that was never presented to the trial court.
The sentencing memorandum states, "[Dworniczak's parents] interfered with my representation of their son to the point of telling him to reject the DA's offer and take the case to trial, despite having no defense and overwhelming evidence in the way of a non-recanting witness/victim. Their own selfish motives of telling him to refuse the offer because they are ill and may not be alive much longer and to roll the dice with a trial caused my client to reject the offer."
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Additionally, we will we not consider Dworniczak's argument raised for the first time in his reply brief that his counsel's failure to raise these issues before the trial court constituted ineffective assistance of counsel. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 ["[o]bvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant"]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 ["[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument"]; People v. Dixon (2007) 153 Cal.App.4th 985, 996 [it is improper to raise issues for the first time in a reply brief]; see also People v. Avena (1996) 13 Cal.4th 394, 419 ["'[w]here the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus"'].)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
JACKSON, J.