Opinion
B231097
11-21-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES ARTHUR MALLETT, III, Defendant and Appellant.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA377724)
APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Affirmed.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
James Arthur Mallett, III appeals from the judgment entered following a jury trial which resulted in his conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), during the commission of which he inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Mallett to seven years in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution's case.
At approximately 10:30 a.m. on July 21, 2010, Meagan Neal was sitting in her car parked in front of her former boyfriend's apartment at 1100 West Vernon Avenue. Her front bumper was approximately four inches from the driveway. Her former boyfriend, Del Vaughn Terry, had not stayed at the apartment for some time and was moving out because of "complications" with his roommate, appellant James Mallett. Neal had driven Terry to the apartment to pick up some of his clothes and other belongings. Two weeks earlier, Terry and Mallett had had a "fall[ing]-out" and Terry had left the apartment. As far as Neal knew, Terry had not been back to the apartment since that time.
Terry did not testify at trial. His testimony from the preliminary hearing was read into evidence.
When they arrived, Neal stayed in the car while Terry went up a flight of stairs to the apartment. Neal heard loud voices and, approximately five minutes later, Terry came out of the apartment and walked down the stairs. He was carrying a backpack in which he had put some of his things and he put the pack into the back seat of Neal's car. He then took off his T-shirt, threw it into the front seat of the car and, from the middle of the street yelled out, "If you want to fight, come outside and fight." Mallett, who was standing at the top of the stairs, looked at Terry and said something to the effect of, "People want to be so bold, they won't be as bold like if I get knives." Mallett then went back into the apartment and, although Neal repeatedly told him to just get into the car, Terry walked to the bottom of the stairs. In the meantime, Mallett had returned to the top of the stairs and was holding in his hand a butcher knife or "meat cleaver." Terry started to walk up the stairs. As he did so, "the butcher knife came flying down." Mallett then immediately went back into the apartment and slammed the door closed.
At the preliminary hearing, Terry testified that Mallett followed him out of the apartment, down the stairs and hit him with a meat cleaver while he was standing by a gate in front of the apartment building. As Mallett attacked Terry he said something to the effect of, "That's how we do it, . . . chop-chop."
Neal testified that Terry, who had not been carrying a weapon, had been on the third or fourth step up from the ground when the knife struck him, cutting him in the nose. He grabbed his nose, which was bleeding profusely, turned around and ran to the car. When he got into the car, there was blood everywhere. There was blood "on his chest, on his hands," and "on the side of [the] door in the car." Neal drove up the street to a doctor's office and someone there called 911. An ambulance arrived and transported Terry to Metropolitan Hospital where he received between 21 and 24 stitches to his nose. Although he had expected to "fight" him, throughout the entire incident, Terry "never touched" Mallett. He did not go after him with a hammer.
After viewing a photograph, the trial court noted that Terry had a "visible scar across the bridge" or "tip of the nose."
At approximately 1:35 in the afternoon of July 21, 2010, Los Angeles Police Officer Monica Tokoro and her partner responded to a radio call directing them to the hospital, then, as a follow-up, to Mallett's apartment to investigate the assault. The officers went to the apartment with two other units and an airship. Tokoro knocked on the door and, when an individual answered, she told the four to five people in the residence to come outside. Everyone complied with the order, with the exception of Mallett. One of the women who had been in the apartment told Tokoro that "the person [they] were looking for was in his room." Tokoro entered the apartment, went to Mallett's room and found him asleep on his bed. When Tokoro told Mallett to take his hands out from under his pillow, he complied with the order and was taken into custody without incident. Tokoro and her partner transported Mallett to the station. As the officers were talking, Mallett spontaneously stated, "What do you think, I sleep with a butcher knife under my pillow?" Until that point in time, neither officer had mentioned anything about a butcher knife.
Other officers stayed behind and searched the apartment. Although they found no knives or other weapons, there was "blood splatter at the bottom of the stairs."
Los Angeles Police Officer Roberto Perez was one of the officers who responded to the call directing officers to Mallett's apartment. He and his partner arrived at the apartment at approximately 1:35 p.m. After the arresting officers escorted Mallett from his bedroom, Perez took him outside to the area by the upper staircase to "conduct[] a [routine] field interview [by] . . . getting his basic information: name, date of birth [and] phone number." In the course of the interview, Perez asked Mallett "if he knew the whereabouts of the knife in question." Mallett responded, "I don't know anything about any butcher knife."
Detective Regina Romero of the Los Angeles Police Department was assigned to investigate the July 21, 2010 assault. She went to the apartment at 1100 Vernon Avenue on January 27, 2011. The detective photographed the apartment, which is above a garage next to a detached residence, and took measurements of the distances from the top of the staircase to the bottom and from the base of the staircase to the street. Romero determined that it is 16 feet from the top step to the bottom step. From the second or third step from the bottom to the top of the staircase, it is approximately 14 and 1/2 to 15 feet and it is approximately 26 feet, 7 inches from the end of the staircase, down the driveway to the street.
After having spoken with Neal, on January 28, 2011, Romero went back to 1100 Vernon Avenue and attempted to park her car in the exact spot in which Neal had been parked during the assault. From that vantage point, Romero could see the bottom three steps leading up to the apartment. Beyond that, her view was blocked.
The day after the incident, on July 22, 2010, Romero interviewed Terry. When Romero asked Terry what the disagreement with Mallett had been about, Terry indicated that he had "used Mr. Mallett's cellphone to . . . call . . . his son's mother on the 16th of July." Mallett apparently then called Terry's son's mother. This upset Terry and when Terry asked his son's mother what she and Mallett had talked about, she said she was too upset to discuss it. When Terry asked Mallett what he had said to his son's mother, the two men had a "verbal" confrontation. Mallett started "telling [Terry] off by cursing at him" and, at that point, Terry decided to move out of the apartment.
Terry admitted having been convicted of receiving stolen property and making criminal threats and that he had been on probation at the time of the incident.
Dr. Simone Gold is an emergency room attending physician at Los Angeles Metropolitan Hospital. On July 21, 2010, she treated Terry for a laceration on his face. She remembered the case because she had been "impressed with the severity of [the cut.] It was more than [the] typical laceration that [she] would [usually] see. It was pretty long and pretty deep and irregular . . . ." Repair of the wound required between 12 and 15 sutures. From the nature of the injury, it was clear to Dr. Gold that it had been caused by a sharp object, such as a knife or box cutter.
b. Defense evidence.
Twenty-two-year-old appellant, James Mallett, testified that he is 5 feet 9 inches tall and weighs approximately 180 pounds. He admitted having been convicted of burglary, a felony, in Illinois in 2007.
Mallett had met Terry approximately two months earlier, in the beginning of May, when the two were playing basketball at Venice Beach. A few weeks later, Terry moved into Mallett's apartment. He stayed there for most of the month of June, sleeping on a futon in the living room.
One day in late June, Mallett came home from work to find Terry's girlfriend with her feet on Mallett's dinner table. She was wearing neither socks nor shoes. Mallett addressed the woman and said, "Sweetie, can you please get your feet off my table?" Terry responded, "Blood, don't check my girl in front of me." Terry and Mallett then had "a big argument." Mallett told Terry that if he could not respect the rules, he could "get the fuck out of [his] house." Terry left, leaving his clothing and other personal items behind. He did not return to the apartment until July 21.
On July 21, 2010, Terry went to the apartment, went into Mallett's room, woke Mallett up and said, "Blood, [it's] time for that fade." When Mallett asked Terry what a "fade" was, Terry responded that it was a fight. Mallett indicated that he wasn't "going to turn that down, so [he] got up [and] put [his] clothes on." When asked what had precipitated this "fade," or fight, Mallett indicated that he assumed it was because, in late June, after 20 minutes of "lethal" arguing, Mallett had "kick[ed] [Terry] out" of the apartment.
When he went into the living room, Mallett saw Terry's cousin packing up Terry's belongings. Mallett and the cousin spoke for a moment and the cousin told Mallett to not go outside.
After Mallett let Terry's cousin out the door, he went to the window and saw Terry pull a hammer from the back seat of Neal's car. Terry and his cousin then stood in front of the car for a few minutes, conversing. To Mallett, Terry looked "mad" or "hostile." When he realized that Terry was still holding the hammer, he went to the kitchen, "got [his] butcher knife and [went] outside." His intent was to "make sure that [Terry] didn't come upstairs . . . with the hammer" and "to scare him off." From the top of the stairs, Mallett shouted at Terry, "Look, my dude, your skin is not Teflon. If I throw this [knife] at you, it's going to cut you, so why don't you just get your stuff and get in the car and [you] can lose my number. You don't have to call me no more. [¶] . . . [¶] . . . [You can] [f]orget all about me."
Terry, who is apparently a large man, was "standing in the grass." His cousin was attempting to hold him back as Terry was "screaming," "You coward, you bitch-ass coward, come down here and fight me . . . ." Holding the hammer in his hand, Terry came running up the stairs and Mallett "punk-fake[d] with the knife. [Terry] ducked and kept coming" so Mallett "threw [the knife, then] ran in[to] the house and closed the door." Mallett had thrown the knife because he believed Terry was going to beat him with the hammer.
Police officers arrived at Mallett's apartment at approximately 2:00 p.m. Officers woke him up, placed him in handcuffs and escorted him out of the apartment to the landing at the top of the stairs.
Mallett remembered hearing Officer Perez testify that, when the officer asked him "where the knife was," Mallett responded that he didn't know anything about a butcher knife. Mallett then admitted that he had lied to the officer. Mallett admitted that he lied again when, at the station, he told Officer Tokoro that he knew nothing about a knife. When he was asked what he did when Terry ran up the stairs with a hammer, he answered, "I'm not trying to incriminate myself because there is no self-defense law in California, and even if I did tell you the truth, I'm still going to jail." Mallett then indicated that, although he had told officers that he had been trying to defend himself, he had never told them that he had used a knife. He testified, "I didn't know if I . . . gave [the police officers] accurate information [whether] they [would] have used it against me. I wanted a lawyer, so that's why I didn't say anything about me having a butcher knife . . . until it bec[a]me mandatory."
On cross-examination, the following colloquy occurred: "[The Prosecutor:] . . . You also mentioned something about you didn't want to maybe mention that [you had a knife] because you wanted your lawyer there; right? [¶] [Mallett:] Correct. [¶] [The Prosecutor:] But you were Mirandized;[]right? [¶] [Mallett:] I didn't get Mirandized until I was at the station, Sir. [¶] [The Prosecutor:] That's what we're talking about, is the interview at the station. [¶] [Mallett:] Correct. [¶] [The Prosecutor:] Even after you were Mirandized and told you have the right to have a lawyer represent you, you waived that right and decided you were going to tell them what you thought; right? [¶] [Mallett:] I didn't waive any right. I was just saying, there was just talk. I don't think I waived the right because I said, I don't want to incriminate myself. [¶] [The Prosecutor:] . . . [Y]ou were told that you have the right to have an attorney present before questioning; correct? [¶] [Mallett:] Correct. [¶] [The Prosecutor:] And you chose not to, to exercise that right; correct? You didn't ask for your lawyer to be there; right? [¶] [Mallett:] No."
Miranda v. Arizona (1966) 384 U.S. 436.
Following additional testimony regarding Mallett's understanding of his right to defend himself, the prosecutor asked him what he had done with the knife. Mallett stated, "It's in the garage." "It's in the basket right when you come to the opening of the garage."
c. Rebuttal.
After he had been transported to the station, Mallett was interviewed in the holding tanks by Los Angeles Police Officer Paul Sandate. Before Sandate asked Mallett any questions, he read to him his rights pursuant to Miranda from a printed card. When, after advising him of his right to counsel, Sandate asked Mallett if "he wanted to talk about what happened," Mallett said that "he didn't know anything." He stated that he didn't know anything about a knife and that he "wasn't sweating it because [they] didn't find no knife anyways." Mallett did tell Sandate that there had been a fight and that Terry had started "up the stairs at him with a hammer." When he was asked if he had a knife, Mallett responded, " 'No.' "
2. Procedural history.
Following the preliminary hearing, an information was filed on December 1, 2010 charging Mallett with one count of assault with a deadly weapon in violation of section 245, subdivision (a)(1). It was further alleged that, during the commission of the assault, Mallett personally inflicted great bodily injury upon Terry within the meaning of section 12022.7, subdivision (a). After Mallett entered a plea of not guilty and denied the special allegation, the matter was tried by a jury.
During trial, it was stipulated that the victim of the assault, Terry, was unavailable and his testimony from the preliminary hearing could be read into evidence. It was agreed that the district attorney had exercised due diligence in his attempts to procure Terry's presence and, outside the presence of the jury, defense counsel commented: "I remember a body attachment going out, and I talked to the D.A. personnel who tried to contact him and were unable to track him down, so I'm satisfied."
After the jury heard all of the evidence, the trial court instructed them on the law, including the law of self-defense.
In a verdict filed February 2, 2011, the jury found Mallett guilty of the crime of assault with a deadly weapon, a felony, "as charged in Count 1 of the information" and found "true" the special allegation that Mallett inflicted great bodily injury on Terry.
At sentencing proceedings held on February 16, 2011, the trial court indicated that there were several circumstances in aggravation. "The crime involved great bodily injury, great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. [¶] [Mallett's] prior convictions as an adult or [crimes committed] as a juvenile are numerous or of increasing seriousness. [¶] [Mallett] has served a prior prison term [and] was on probation or parole when he committed the [present] crime. [¶] And based on what the defendant said when he was testifying, he's certainly not remorseful. He said he'd do exactly the same thing again." The trial court then imposed the upper term of four years in prison for Mallett's conviction of assault with a deadly weapon and three years for the special allegation that he inflicted great bodily injury, for a total of seven years in prison. Mallett was awarded a total of 242 days of presentence custody credit. As to fines, the trial court imposed an $800 restitution fine (§ 1202.4, subd. (b)), a stayed $800 parole revocation restitution fine (§ 1202.45), a $30 criminal conviction assessment (Gov. Code, § 70373), and a $40 court security fee (§ 1465.8, subd. (a)(1)).
Mallett filed a timely notice of appeal on February 16, 2011.
This court appointed counsel to represent Mallett on appeal on May 10, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed August 9, 2011, the clerk of this court advised Mallett to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On September 30, 2011, Mallett filed a supplemental brief in which he asserted his counsel was ineffective for stipulating to the fact that the prosecution exercised due diligence in its attempts to find Terry and bring him to court. In addition, he argued that his counsel was ineffective for failing to object to the admission of statements he made in violation of Miranda. Finally, Mallett indicated that he could not be guilty because the testimony of several of the police officers contradicted that of Terry and Neal.
We first consider Mallett's claim of ineffective assistance of counsel. "In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing as to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) Moreover, "[a] reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter, supra, at p. 1211.)
Mallett asserts counsel's representation fell below a standard of reasonableness when he agreed that Terry's testimony from the preliminary hearing could be read into evidence because the prosecutor had been unable to secure Terry's presence at trial. Mallett argues his counsel's actions denied him his Sixth Amendment right to cross-examine his accuser in front of a jury.
"A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right, however, is not absolute. The high court recently reaffirmed the long-standing exception that '[t]estimonial statements of witnesses absent from trial [may be] admitted . . . where the declarant is unavailable, and . . . where the defendant has had a prior opportunity to cross-examine.' (Crawford v. Washington (2004) 541 U.S. 36, 59; see People v. Cromer (2001) 24 Cal.4th 889, 892.)" (People v. Wilson (2005) 36 Cal.4th 309, 340.) This concept is codified in Evidence Code section 1291, which reads in relevant part: " (a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." Here, Terry's testimony at the preliminary hearing, during which Mallett's counsel had had the opportunity to conduct cross-examination, was offered for the identical purpose for which it had been offered at trial: to show that Mallett severely injured Terry by throwing a butcher knife at him from the top of a set of stairs.
Mallett, however, urges that, apart from whether Terry's prior testimony was offered for the same purpose, Terry was not "unavailable." The prosecutor did not exercise due diligence in his attempts to find him.
Evidence Code section 240, subdivision (a) provides: "Except as otherwise provided in subdivision (b), 'unavailable as a witness' means that the declarant is any of the following: [¶] . . . [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process." The record on appeal fails to indicate what steps the prosecutor took to bring Terry to the trial. Mallett, whose claims are unsupported by any reliable source, indicates that the prosecutor spoke with Terry on January 13, 2011 and "was aware that Mr. Terry was in Las Vegas, Nevada at the start of [the] trial." However, even if the prosecutor had spoken with Terry and suspected that he was somewhere in Las Vegas, that does not mean that the prosecutor knew where in Las Vegas Terry could be found or that he had the resources to secure Terry's presence.
On the record before us, we conclude the admission of Terry's former testimony did not violate Mallett's Sixth Amendment right to confront the witnesses against him and Mallett's counsel acted reasonably and professionally when he stipulated to the use of Terry's preliminary hearing testimony at trial.
Mallett next contends his trial counsel was ineffective when he failed to object to the prosecution's use of Mallett's statements regarding the knife. Mallett indicates he remembers Officer Perez testifying that, when the officer asked him "where the knife was," Mallett responded that he didn't know anything about a butcher knife. Later, as he was being transported to the police station, Mallett spontaneously stated, "What do you think, I sleep with a butcher knife under my pillow?" Mallett indicates his trial counsel should have objected to the prosecutor's use of these statements at trial in that they were inadmissible because they violated the principles of Miranda.
The other statements referred to by Mallett were made at the station, after he had been advised of his rights pursuant to Miranda.
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Under Miranda, " 'a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, [or] to appointed counsel in the event the suspect is indigent.' [Citation.]" (People v. Crittenden (1994) 9 Cal.4th 83, 128.) "The Supreme Court has recognized that 'the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.' [Citation.]" (People v. Nguyen (2005) 132 Cal.App.4th 350, 355-356, italics in original.) Mallett admits the statements made to Officer Perez and the officers transporting him were voluntary and, at least with regard to the one made while he was being transported, "spontaneous." Mallett was not being interrogated. Under these circumstances, the statements were admissible and Mallett's counsel properly chose to not object to their admission.
Finally, Mallett argues that the evidence cannot support his conviction. He asserts that if one compares what Terry and Neal purportedly told Officers Tokoro, Sandate and Romero, the evidence is contradictory and cannot support a finding he committed the assault. However, comparing the testimony of various witnesses is not the function of an appellate court. " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' " (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Here, although there are some discrepancies in the testimony, the evidence substantially supports the jury's findings. (Id. at p. 1208.)
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.