Opinion
A123894
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. VINCENT MARCELLINO et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco City & County Super. Ct. Nos. 205471-02, MCN2367541)
After a jury convicted defendants Vincent Marcellino and Mark Mechikoff of assaulting an elderly gentleman and his young wife, the trial court sentenced defendants to prison terms of five and four years, respectively. In this joint appeal, they assert one common argument: that the trial court erred when it instructed the jury on assault with a deadly weapon. They each also assert two additional claims. Marcellino contends that the prohibition against double jeopardy barred the trial leading to his conviction, and that the trial court erred in rejecting his request that it instruct the jury on mistake or ignorance of fact, and accident. Mechikoff contends that the prosecutor committed misconduct and denied him due process and equal protection by offering a plea bargain only as a package deal that had to be accepted by both defendants, and that the trial court imposed a vindictive sentence. We conclude that all claims lack merit, and we affirm.
PROSECUTOR'S EVIDENCE
On May 9, 2008, at approximately 11:20 p.m., 73-year-old Anton Fuchs and his wife Dueanphen were stopped in their car at a red light at the intersection of 16th and Market Streets in San Francisco. As they sat waiting for the light to turn green, they suddenly heard "a screeching and squealing of tires" and felt a "thumping and bumping" on their car. They saw movement behind them, and Mr. Fuchs thought perhaps a car had knocked a pedestrian into the back of their car. He got out and walked around to the rear of the car, expecting to see somebody lying there, but instead saw one or two people "running and squeezing" into the passenger side of a white, two-door Pontiac that was stopped behind them. Mr. Fuchs approached the driver's side of the car and asked what happened. Someone inside the car—possibly Marcellino, who was in the driver's seat— responded with a barrage of "you 'f' queer." Mr. Fuchs also heard laughter coming from inside the car.
In the meanwhile, Mrs. Fuchs had gotten out of the car with her camera and taken photographs of the Pontiac's license plate in case there was damage to their car. She approached the passenger side of the Pontiac and tried to take pictures of the four occupants, but they began swearing at her and one tried to grab the camera out of her hand. Mr. Fuchs had returned to his car to get his cell phone so he could call the police, when he suddenly heard his wife yelling for help. Abandoning his search for his phone, he ran back to the Pontiac, where he saw Mechikoff, who was sitting in the front passenger seat, grabbing Mrs. Fuchs's arm and pulling it into the car through the open window. Two passengers in the rear seat—one of whom was subsequently identified as Alex Bryant—then also grabbed her and tried to pull her into the car. When Mr. Fuchs tried to release Mechikoff's grip on his wife, Mechikoff grabbed the collar of Mr. Fuchs's jacket and "smashed" him against the door frame of the Pontiac. Mr. Fuchs's upper body was pulled into the car, and Marcellino punched him in the face three or four times. While the Fuchses were still being held by Mechikoff and the backseat passengers, someone in the car yelled, "Keep driving! Let's go! Go! Go! Go!" Marcellino then began driving the car forward, first steering around the Fuchses' car and then continuing the length of their car, all the while dragging Mr. and Mrs. Fuchs, who had to run alongside the car as it moved. They were struggling to get free and yelling for help, with Mr. Fuchs begging, "Let us go! Let us go! Let us go!" In Mr. Fuchs's estimation, he and his wife were dragged 20 to 25 feet. Mrs. Fuchs estimated the distance to be two car lengths.
As the Pontiac pulled up even with the Fuchses' car, Muni inspector Kermit Arnold drove by in a Muni pickup truck and heard someone "hollering for help." He saw the Pontiac moving and the Fuchses pulled part way into the car. Because they were calling for help and he could tell they wanted the car stopped, Arnold blocked the lane with his pickup truck, preventing the Pontiac from moving any further. He then called the Muni control center for assistance and stood in front of the Pontiac, telling Marcellino not to move. Mechikoff, Bryant, and the fourth assailant finally released the Fuchses, got out of the Pontiac, and ran off, while Marcellino remained in the driver's seat. Mr. Fuchs reached into the car and took the keys, preventing Marcellino from driving off. He was still sitting in the driver's seat when the police arrived moments later, and Mechikoff and Bryant were apprehended soon thereafter. The fourth assailant was never caught.
Tom Geller, a resident of the neighborhood who was out for a walk that evening, also witnessed the incident. According to his testimony, as he was walking near the intersection of 16th and Market Streets, he heard tires squealing and a male voice yell an obscenity out the window of a white Pontiac. The Pontiac then passed the car driven by the Fuchses, and an occupant—whom Geller identified as Bryant—got out and began jumping up and down on the Fuchses' car before returning to the Pontiac. At that point, Geller called 911. While he was on the call, Mr. and Mrs. Fuchs got out of their car and walked over to the Pontiac, where an altercation ensued. From his vantage point, it looked like the Fuchses were reaching into the white car or were somehow "attached" to it. The Pontiac then began to move in "start[s] and stops," dragging the Fuchses an estimated 10 feet. As Geller described it, "I couldn't put a number on it, but it was slow enough that [Mr. Fuchs] was able to run alongside, but fast enough that if I were him, I would have been panicked." When the car stopped, Mechikoff, Bryant, and one other man ran from the car, while Marcellino remained behind in the car. The police arrived while Geller was still on the 911 call.
As a result of the assault, Mr. Fuchs suffered cuts inside his lips and abrasions and swelling to his lips, chin, left cheek, and jaw. He also suffered a burn-like mark around his neck from the string on his hooded jacket. Mrs. Fuchs suffered a scratched, swollen, and bruised arm, as well as a torn sweater.
PROCEDURAL BACKGROUND
On June 9, 2008, the district attorney for the City and County of San Francisco filed an information charging defendants with three counts of inflicting injury on an elder adult likely to cause great bodily injury (counts I, IV, and VI; Pen. Code, § 368, subd. (b)(1)); two counts of assault with a deadly weapon (counts II and III; § 245, subd. (a)(1)); and two counts of assault with force likely to cause great bodily injury (counts V and VII; § 245, subd. (a)(1)). As to counts II, V, and VII, the information alleged that defendants committed the offenses upon a person who was 60 years old or older within the meaning of section 1203.09, subdivision (f). Mechikoff was also charged with one count of attempted second degree robbery by means of force and fear (count VIII, §§ 664/211). As to Marcellino only, the information alleged a prior felony with a state prison term within the meaning of section 667.5, subdivision (b).
All subsequent statutory references are to the Penal Code except where otherwise noted.
Trial commenced on July 31, 2008 before the Honorable Donald S. Mitchell. Jury selection began that day, and continued on August 4, concluding with the seating of a jury on August 5. On August 6, the prosecution began presentation of evidence, first calling Mr. Fuchs to testify.
The following day, at the commencement of the afternoon session, Judge Mitchell abruptly announced: "Okay. Everyone's here, and there's something that I have to tell you, and that is that I have to declare a mistrial in this case for reasons that I can't explain to you. The case is over, and there we have it." He then thanked and excused the jury.
Once out of the presence of the jury, Judge Mitchell explained to counsel: "So I should state for the record the reasons why I discharged the jury and declared a mistrial in this case. It turns out, and I just learned this afternoon just before the jury was to be brought in, that I've known the defendant Mark Mechikoff's mother for many years as an employee of our court. She works in our Clerk's office, and I have a, more or less, friendly professional relationship with her for . . . I don't even know how many years. But it's my belief because of that working relationship with his mother over the years that I can't be fair and impartial in this case either to Mark Mechikoff or to Vince Marcellino, the co-defendant in this case. [¶] Therefore, it's my view because of that that I should disqualify myself from this matter, and I've declared a mistrial."
The matter was subsequently transferred to Judge Wallace Douglass, and a second jury trial commenced on October 6, 2008. On October 31, 2008, the jury found both defendants guilty of two counts of assault with a deadly weapon. Additionally, Mechikoff was convicted of two counts and Marcellino of one count of simple assault, a lesser-included misdemeanor in the counts of assault with force likely to produce great bodily injury. The jury also found true the enhancement to count II and the allegation that Marcellino had served a prior prison term. The jury deadlocked on the attempted robbery charge against Mechikoff, and Judge Douglass declared a mistrial on that count.
On December 9, 2008, Judge Douglass sentenced Mechikoff and Marcellino to four and five years in state prison, respectively, with Marcellino's longer sentence due to the prior prison term enhancement.
This timely appeal followed.
DISCUSSION
I
Judge Douglass Did Not Commit Reversible Error When He
Instructed the Jury On Assault With a Deadly Weapon
In the one argument presented by both defendants, Marcellino and Mechikoff assert instructional error on the two counts of assault with a deadly weapon. The People contend that defendants waived any challenge to the instruction because they failed to object to the purported error below. It is well established, however, that where a claimed instructional error affects a defendant's substantial rights, the reviewing court may consider the argument notwithstanding the absence of an objection below. (§ 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) As the Andersen court explained, "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. Accordingly, it seems far better to state straightforwardly, as we now do, that an appellate court may ascertain whether the defendant's substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court." (Ibid.) An error is said to have affected a defendant's substantial rights, "i.e., resulted in a miscarriage of justice, [where it is] reasonably probable the defendant would have obtained a more favorable result in the absence of error." (Ibid.)
Without expressing any opinion on the propriety of the challenged instruction, we conclude that the claimed instructional error did not affect defendants' substantial rights, because it was not reasonably probable that they would have been acquitted of assault with a deadly weapon had Judge Douglass instructed the jury as defendants now claim he should have.
Judge Douglass instructed the jury with an assault with a deadly weapon instruction derived from CALCRIM 875, as follows: "Defendants are charged in counts 2 and 3 with assault with a deadly weapon. To prove that a defendant is guilty of this crime, the people must prove that, one, the defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; two, the defendant did that act willfully; three, when the defendant acted, the defendant was aware of facts that would lead a reasonable person to realize that the defendant's act by its nature would directly and probably result in the application of force to someone; and four, when the defendant acted, the defendant had the present ability to apply force with a deadly weapon.
"Someone commits an act willfully when he or she does it willingly or on purpose. The law does not require that one intend to break the law, hurt someone else, or gain any advantage. The terms 'application of force' and 'apply force' mean to touch in a harmful or offensive manner. The slightest touching can be enough if it done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. The touching can be done indirectly by causing an object to touch the other person.
"The People are not required to prove that the defendant actually touched someone. The People are not required to prove that the defendant actually intended to use force against someone when the defendant acted. No one needs actually to have been injured by the defendant's act. But if someone was injured, you may consider that fact along with all the other evidence in deciding whether the defendant committed an assault, and if so, what kind of assault it was. Voluntary intoxication is not a defense to an assault charge. A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
Defendants contend that this instruction was erroneous in the manner in which it defined "deadly weapon." As noted, the instruction identified two different categories of deadly weapons: one that includes "inherently deadly or dangerous" objects and another that includes objects that are not inherently deadly or dangerous but are used in a manner likely to cause great bodily injury or death. Relying on People v. Aguilar (1997) 16 Cal.4th 1023, 1038 and People v. Raleigh (1932) 128 Cal.App. 105, defendants submit that the first category—inherently deadly or dangerous weapons—is limited to objects that are designed to be weapons, and that assault based thereon focuses solely on the nature of the object used. As Marcellino explains it, "Is it designed to be a weapon? If so, then the mere use of this instrument, standing alone to commit an assault, will support a conviction for assault with a deadly weapon regardless of whether it was used in a manner likely to cause death or serious injury on a particular occasion. When an inherently deadly or dangerous weapon is used, it is solely the nature of the object itself and not the manner of its use, which elevates the offense from simple assault to assault with a deadly weapon."
In criticizing the instruction given here, defendants cite People v. Milward (2010) 182 Cal.App.4th 1477, 1484 for the proposition that, as Marcellino puts it, "[a]t least one court has suggested that CALCRIM 875 should be rewritten." Milward's criticism of CALCRIM 875 pertained to the instruction's failure to exclude firearms from its ambit, an issue not relevant here. More importantly, on July 14, 2010, S182263, before defendants filed their opening briefs, the California Supreme Court granted review, rendering Milward uncitable. (Cal. Rules of Court, rules 8.1105, 8.115.)
On the other hand, defendants argue, when the object is not an inherently deadly or dangerous weapon, the manner of the object's use dictates whether there was an assault. In other words, defendant is guilty only if he or she used the object in a manner likely to cause death or great bodily injury. According to defendants, this distinction is critical, because an automobile—the deadly weapon at issue in this case—is not an inherently deadly or dangerous weapon. Thus, in order to convict them of assault with a deadly weapon, the jury needed to find that they used the car in a manner likely to cause death or great bodily injury. But, they complain, the jury was not so instructed. Rather, the instruction erroneously included inherently deadly or dangerous weapons as a category of deadly weapons, without defining what that meant or informing that jury that it did not include an automobile. In other words, as Judge Douglass instructed it, the jury could have concluded that the Pontiac was an inherently deadly or dangerous weapon and convicted defendants based simply on that fact, without considering how they used the car. Defendants submit that, to avoid this confusion, the instruction should have either omitted reference to inherently deadly or dangerous weapons or defined the category so the jury was aware an automobile did not qualify.
In light of the evidence presented at trial, however, we can only conclude that even if Judge Douglass had omitted reference to or defined the phrase "inherently deadly or dangerous" weapons, defendants would not have obtained a more favorable result.
Defendants do not dispute—indeed, they concede—that an automobile can constitute a deadly weapon if it is "used in such a way that it is capable of causing and likely to cause death or great bodily injury." The only question, then, is whether the evidence here showed that it was. Mr. Fuchs testified that while Mechikoff and the two backseat passengers were pulling him and his wife into the Pontiac, the passengers yelled at Marcellino to drive off, which he did. By Mr. Fuchs' estimate, the car moved 20 to 25 feet while he and his wife were hanging off the side. Mrs. Fuchs estimated the distance traveled to have been two car lengths. Neighborhood resident Geller put it at 10 feet, describing it this way: "I couldn't put a number on it, but it was slow enough that [Mr. Fuchs] was able to run alongside, but fast enough that if I were him, I would have been panicked." In light of this evidence, a jury finding that defendants used the car in a manner "capable of causing and likely to cause death or great bodily injury" was reasonably probable.
We need not speculate, however, as to what the jury might have found had Judge Douglass instructed it as defendants now urge. This is so because the prosecutor's closing argument suggests that the jury did in fact find that defendants used the Pontiac in a manner likely to cause death or great bodily injury to the Fuchses. Regarding defendants' liability for the two assault with a deadly weapon charges, the prosecutor argued to the jury: "Mr. Fuchs heard the passenger—the front passenger, Mr. Mechikoff—say, 'Go. Drive. Let's go.' He also heard other people in the car saying it. And what did Mr. Marcellino do? He drove. He took off. While all this screaming is happening, he knows that these people are attached to the car, and he made the decision to drive his car while two people are attached and being held into that car. Vincent Marcellino is guilty of assault with a deadly weapon, to wit a car, because he drove that car knowing these people were hanging out of it. The circumstantial evidence supports no other logical conclusion, and Mechikoff and the other yahoos told him to drive. And he did. It's the classic example. [¶] And Mechikoff is just as guilty because he told him to drive. Mechikoff is holding them in the car, and while he's holding them in the car, he says, 'Drive. Get out of here.' " Since the jury found both defendants guilty of assault with a deadly weapon, the only reasonable conclusion is that they believed defendants drove the car in a manner likely to cause death or great bodily injury to Mr. and Mrs. Fuchs.
In sum, defendants were not reasonably likely to have obtained a more favorable result had Judge Douglass instructed the jury as they now urge he should have. As such, it cannot be said that the instructional error they now claim affected their substantial rights, and there is no basis for addressing the merits of their argument.
II
Marcellino's Retrial Did Not Violate The
Prohibition Against Double Jeopardy
We next address an issue raised exclusively by Marcellino, an issue which, if found to have merit, would result in reversal of his conviction and dismissal of the charges against him. Marcellino contends that Judge Mitchell declared a mistrial in the first trial without his consent or legal necessity such that double jeopardy barred the second trial. He did not, however, enter a once-in-jeopardy plea below, which generally results in a waiver of the right to argue double jeopardy on appeal. (In re Henry C. (1984) 161 Cal.App.3d 646, 648-649 (Henry C.); People v. Franklin (1976) 56 Cal.App.3d 18, 23; People v. Fairchild (1967) 254 Cal.App.2d 831, 835, cert. den. sub nom. Fairchild v. California (1968) 391 U.S. 955.) Cases have, however, recognized an exception to the waiver rule where the once-in-jeopardy plea had merit, but trial counsel failed to raise it, thereby depriving defendant of adequate assistance of counsel. In such an instance, the Court of Appeal can reverse the conviction due to ineffective assistance of counsel. (People v. Medina (1980) 107 Cal.App.3d 364, 370; Henry C., supra, 161 Cal.App.3d at p. 649.) Thus, despite the absence of an objection below, we consider whether a once-in-jeopardy plea would have had merit. And answer this question in the negative.
Section 1016, subdivision (5) identifies once in jeopardy as one of six possible pleas to an indictment, an information, or a complaint.
Consistent with the Fifth Amendment of the United States Constitution, Article I, section 15, of the California Constitution provides in pertinent part: "Persons may not twice be put in jeopardy for the same offense . . . ." This double jeopardy provision prohibits a second prosecution of the same individual for the same offense unless the trial court declared a mistrial either with the defendant's consent or due to a legal necessity. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 119, p. 464.) There is no suggestion here that Marcellino consented to the mistrial. Thus, the issue before us is whether Judge Mitchell's declaration that he could not be impartial constituted a legal necessity that justified a mistrial. We conclude that it did.
In Curry v. Superior Court (1970) 2 Cal.3d 707, 713-714, the California Supreme Court defined the concept of legal necessity as follows: "[L]egal necessity for a mistrial typically arises from an inability of the jury to agree [citations] or from physical causes beyond the control of the court [citations], such as the death, illness, or absence of judge or juror [citations] or of the defendant [citations]. A mere error of law or procedure, however, does not constitute legal necessity. [Citations.]" At least three cases have recognized that a judicial declaration of bias or inability to be impartial, such as that made by Judge Mitchell, constitutes a legal necessity justifying a mistrial. These cases are dispositive here.
In T.P.B., Jr. v. Superior Court (1977) 66 Cal.App.3d 881 (T.P.B.), a jurisdictional hearing commenced before a judge of the juvenile court. During voir dire of a witness by the minor's counsel, the judge disqualified himself on the ground that he could not fairly and impartially consider the evidence. He declared a mistrial, and the matter was set for hearing before a different judge. The minor entered a plea of once in jeopardy, which the judge rejected on the ground that the mistrial was mandated by legal necessity. (Id. at p. 883.)
The Court of Appeal affirmed, explaining, "In the instant case the judge admitted his disqualification on the basis that by reason of bias or prejudice a fair and impartial trial could not be had before him. From that moment the judge was disqualified from acting or sitting in the case other than to declare a mistrial. Under [former Code of Civil Procedure] section 170 it was required that action or proceeding be heard by another judge. Accordingly, a 'legal necessity' existed for the order of mistrial because the trial judge was disqualified as a matter of law from continuing to sit and act in the case." (T.P.B., supra, 66 Cal.App.3d at p. 886.)
Former Code of Civil Procedure section 170 is now set forth in section 170.1, which provides in pertinent part that a judge "shall be disqualified" if he or she "believes there is a substantial doubt as to his or her capacity to be impartial." (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(ii).)
Likewise, in Henry C., supra, 161 Cal.App.3d 646, a contested jurisdictional hearing commenced, but after hearing testimony of three prosecution witnesses, the trial court advised counsel that it could not be fair and impartial to either side because it had preconceived notions as to the credibility of certain witnesses. The court then found there to be a legal necessity for a mistrial and continued the matter for a new jurisdictional hearing. (Id. at pp. 649-650.) Following a second jurisdictional hearing before another judge, the charges against the minor were sustained. (Id. at p. 648.)
On appeal, the minor contended that the trial court violated the prohibition against double jeopardy. (Henry C., supra, 161 Cal.App.3d at p. 648.) The Court of Appeal rejected the claim: "Here, the trial judge was precluded by the express language of [former] Code of Civil Procedure section 170, subdivision (a)(5), from proceeding with the hearing. In light of his announced bias and prejudice he was required to disqualify himself. By definition, he could no longer be a 'judge' in this case. This clearly constituted a legal necessity for an order of mistrial and the second jurisdictional hearing did not violate the constitutional prohibition against double jeopardy." (Id. at p. 654.)
Finally, in In re Carlos V. (1997) 57 Cal.App.4th 522 (Carlos V.), a juvenile jurisdictional hearing commenced but was continued to allow for the further development of evidence. When the hearing recommenced, the judge advised the parties that he had had a conversation with a police officer regarding the evidence, acknowledged the impropriety of having done so, disqualified himself from hearing the matter any further, and declared a mistrial. (Id. at pp. 524-525.)
As in T.P.B. and Henry C., the appellate court concluded that legal necessity compelled the mistrial: "[T]he juvenile judge properly disqualified himself as required under section 170.1, subdivision (a)(6). Clearly, he was in the best position, as the fact finder, to evaluate his own ability to be impartial. Under the circumstances, therefore, we conclude that his self-disqualification compelled the mistrial and thus, as a matter of 'legal necessity,' prevented the case from proceeding." (Carlos V., supra, 57 Cal.App.4th at p. 528.)
Here, Judge Mitchell determined that in light of his relationship with Mechikoff's mother, he could not be impartial to either Mechikoff or Marcellino. Once he made that determination, he was necessarily disqualified as a matter of law from continuing to preside over the case. (Code Civ. Proc. § 170.1, subd. (a)(6); Carlos V., supra, 57 Cal.App.4th at p. 526, fn. 5 [where a judge is biased, prejudiced, or lacks the ability to be impartial, disqualification is mandatory].) As the court stated in T.P.B., supra, 66 Cal.App.3d at p. 886: "Had he proceeded with the trial he would have offended the basic concepts of due process." Judge Mitchell's disqualification undoubtedly constituted a legal necessity for the mistrial.
Marcellino's fundamental objection to this conclusion is that Judge Mitchell's stated reason for his lack of impartiality concerned only Mechikoff. According to Marcellino, the trial could have—indeed, should have—proceeded solely as to him. As he puts it: "The trial court never claimed he knew Mr. Marcellino, knew any of his relatives, or that there was anything about Mr. Marcellino which would prevent the court from serving as the trial judge in this case. Nothing stated by Judge Mitchell suggested that Mr. Mechikoff's mother knew or had even heard of Mr. Marcellino or would have the slightest reason to be concerned about his fate." From this he speculates that "[t]here was nothing which warranted the court disqualifying itself from presiding over Mr. Marcellino's trial. Mr. Marcellino was simply a criminal defendant who was before the court for trial. Judge Mitchell had a legal duty to preside over that trial." But in so advocating, Marcellino seeks to substitute his own opinion about whether Judge Mitchell could be impartial for Judge Mitchell's express representation that in light of his friendship with Mechikoff's mother, he could not be impartial to either Mechikoff or Marcellino. As Marcellino himself acknowledges, a trial court is in the best position to "evaluate his own ability to be impartial." (Carlos V., supra, 57 Cal.App.4th at p. 528.) And there is simply no basis for questioning Judge Mitchell's declaration.
Marcellino also attempts to distinguish T.P.B., Henry C., and Carlos V. He correctly notes that "[t]hey all involved court trials in which the judge served as the sole trier of fact." But this is an irrelevant distinction, as all defendants are entitled to an impartial judge, regardless of whether the judge or a jury is the trier of fact. (Code Civ. Proc., § 170.1; Blackman v. MacCoy (1959) 169 Cal.App.2d 873, 878-879 [Code of Civil Procedure section 170 [section 170.1's predecessor] is applicable to criminal proceedings].)
Marcellino also attempts to distinguish the trio of cases on the grounds that "in each of these cases the basis for the judge's self-disqualification was that he became angered by certain actions taken by defense counsel, had preconceptions about issues of witness credibility, or his own misconduct. In the case at bench none the [sic] parties, nor their counsel, nor the trial court engaged in any behavior which brought about the disqualification. Nor did the court have any preconception about witness credibility." These are, again, distinctions without a difference, as there is an infinite number of reasons a judge may consider himself or herself incapable of being impartial. That Judge Mitchell's reason differed from those offered by the trial judges in T.P.B., Henry C., and Carlos V. is of no significance.
Curiously, Marcellino also seeks to distinguish Scott v. Municipal Court (1971) 17 Cal.App.3d 885 (Scott), the one case that could arguably support his position. There, the Court of Appeal considered whether the prohibition against double jeopardy barred retrial after the trial judge's declaration of bias (id. at p. 887), but unlike T.P.B., Henry C., and Carlos V., the court concluded there had been no legal necessity for the order of mistrial. (Id. at p. 888.) In light of this outcome, one would expect Marcellino to urge that we follow Scott—though it is perhaps not surprising that he does not, as such would have been misplaced.
In Scott, defendant waived her right to a jury trial and proceeded to a court trial on a misdemeanor charge of soliciting an act of prostitution. After the case had been submitted, the judge was summarizing the evidence, including evidence of a conversation involving another woman who had been charged with a similar offense on the same occasion. Defense counsel objected to the court's consideration of that evidence, advising that the other woman had been acquitted by a different judge. The trial judge determined that in light of defense counsel's statement, inappropriate as it was, he could no longer render an impartial verdict, and declared a mistrial. (Scott, supra, 17 Cal.App.3d at p. 887.)
The Court of Appeal concluded that retrial was barred by the prohibition against double jeopardy, finding that "the language and the philosophy of Curry v. Superior Court[, supra,]2 Cal.3d 707, govern[ed] the case at bench." (Scott, supra, 17 Cal.App.3d at p. 887.) After quoting Curry's definition of "legal necessity," followed by the Curry court's explanation for why a defendant may choose not to move for or consent to a mistrial, the court conclusorily stated, "In the light of the language above quoted, we conclude that no 'legal necessity' existed for the order of mistrial and that, defendant having been in jeopardy at her first trial, she cannot now be retried for the same offense." (Id. at p. 888.)
The T.P.B. court considered Scott but, rather than reject it as wrongly decided, sought to factually distinguish the case: "In Scott the trial judge ordered a mistrial after the case had been submitted for decision upon the mere declaration that he could no longer render an impartial decision because of a statement made by defense counsel during the judge's summarization of the evidence. Here, the mistrial was declared prior to submission of the cause and after the judge had declared his disqualification." (T.P.B., supra, 66 Cal.App.3d at p. 885.)
The Carlos V. court had a different take on Scott, as follows: "The minor here argues, and we agree, that the court in T.P.B. stated a distinction without a difference: Declaring mistrial before or after submission is irrelevant on the issue of 'legal necessity.' However, we find that Scott read Curry and interpreted 'legal necessity' too narrowly and also failed to recognize the duty of a court to disqualify itself upon determining that it cannot be fair and impartial. [¶] . . . [¶] . . . Thus, we decline to follow Scott and consider T. P. B. better reasoned and correct." (Carlos V., supra, 57 Cal.App.4th at p. 527.) We likewise consider Scott's failure to recognize the court's duty to disqualify itself a fatal flaw and are more persuaded by the T.P.B./Henry C./ Carlos V. line of authorities, authorities that make it clear that a trial court's declaration of lack of impartiality mandates disqualification and mistrial.
Hutson v. Superior Court (1962) 203 Cal.App.2d 687, which Marcellino cites in claimed support of his assertion that the trial court should have proceeded with the trial as to him, is similarly of no avail. Co-defendants Daniels and Hutson were charged with burglary. At the preliminary hearing, they were both represented by the same public defender, but by the time of trial, Hutson had retained separate counsel. When it came time to cross-examine Hutson, the public defender explained to the judge in chambers that he could not complete the cross-examination absent a waiver of the attorney/client privilege because during his representation of Hutson he had learned facts inconsistent with Hutson's trial testimony. When Hutson refused to grant a waiver, the trial court declared a mistrial as to both defendants. (Id. at pp. 688-689.)
The Court of Appeal agreed with Hutson that double jeopardy prevented his retrial. (Hutson v. Superior Court, supra, 203 Cal.App.2d at pp. 690-693.) It concluded that he had not consented to the mistrial, nor was there a legal necessity for one, explaining that Daniels could have requested the appointment of new counsel, or the court could have declared a mistrial as to Daniels if he had so requested. (Id. at p. 691.) Marcellino claims that, as in Hutson, Judge Mitchell should have declared a mistrial as to Mechikoff and continued the trial as to him. But the case simply is not analogous. It in no way involved the situation before us—the trial court's determination that it could not be impartial to either co-defendant.
Marcellino also relies on Larios v. Superior Court (1979) 24 Cal.3d 324. It, too, is inapposite. There, a juror admitted that he undertook his own investigation into the defendant's alibi and advised the court that based on what he found, he could not be fair and impartial. No alternates had been empanelled, defendant refused to proceed with an 11-person jury, and the trial court declared a mistrial. (Id. at pp. 327-328.) The Court of Appeal subsequently determined that these facts did not constitute legal necessity for a mistrial, however, because the defendant did not object to the juror remaining on the panel such that there was thus still a 12-person jury, and the defendant had a right to have the case go to conclusion. (Id. at p. 331-333.) Like Hutson, supra, 203 Cal.App.2d 687, and unlike here, there was no question about the trial judge's impartiality as to the defendant claiming double jeopardy.
In one final attempt to salvage his claim, Marcellino urges significance in the fact that Judge Mitchell declared a mistrial before advising defendants and counsel of his inability to be impartial and disqualifying himself. As Marcellino argues it: "There are sound reasons for requiring a court to fully state its proposed reasons for sua sponte ordering a mistrial before it actually discharges the jury. Where the trial court states the reasons for declaring a mistrial, the parties understand why the court is taking this action. The defendant may opt to consent to the mistrial. In which case there is no issue of double jeopardy since the mistrial was ordered with his concurrence." Here, Marcellino argues that because Judge Mitchell declared a mistrial and discharged the jury before advising him of the claimed conflict, "it prevented [him] from showing that there was no legal basis for the judge to disqualify itself from continuing to hear the trial in his matter and that he wanted to proceed." This argument, however, ignores the fundamental import of Code of Civil Procedure section 170.1: once Judge Mitchell determined that he could not be impartial to both Mechikoff and Marcellino, he was precluded as a matter of law from presiding over the case as to either defendant. This result could not be trumped by Marcellino's desire to proceed with the trial.
III
Judge Douglass Did Not Err In Rejecting Marcellino's
Instruction Regarding Ignorance or Mistake
Marcellino also asserts a second instructional error, this arguing that Judge Douglass erred in refusing to instruct the jury as to mistake or ignorance of fact and accident. He requested such instructions pursuant to CALCRIM 3404 and 3406, but Judge Douglass denied his request. This, Marcellino claims, wrongfully deprived him of two defenses. There was no error.
Section 26, subdivision 3 recognizes that if defendant committed what would otherwise be a criminal act as a result of a mistake or ignorance of a fact, this would negate the mental state necessary for the offense, and defendant could not be convicted of the crime. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425; People v. Gonzales (1999) 74 Cal.App.4th 382, 389; People v. Beardslee (1991) 53 Cal.3d 68, 87 ["When a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them."].) As with any other defense, the trial court must instruct on mistake or ignorance of fact whenever there is substantial evidence in the record suggesting that defendant committed his act based on some factual misperception on his part or was unaware of certain crucial facts at the time he acted. In determining if there is substantial evidence to support instructing as to a particular defense, the trial court should view the evidence in the light most favorable to the proffered instruction and draw all reasonable inferences in favor of that defense. (People v. Russell, supra, 144 Cal.App.4th at p. 1430.)
As Marcellino explains it, his liability for assaulting the Fuchses depended on him knowing that the passengers in the Pontiac had grabbed the Fuchses and pulled them part way into the car such that they would be dragged along if he drove the car forward. He contends that there was substantial circumstantial evidence from which the jury could have found that he was not aware that driving the Pontiac from the scene of the altercation "would probably and directly result in physical force being applied to the Fuchs [sic]." Marcellino is wrong.
Both Mr. and Mrs. Fuchs testified that they were being pulled partially inside the Pontiac—a two-door vehicle—while Marcellino drove it down the street at the urging of his cohorts. Marcellino was close enough to Mr. Fuchs to have punched him in the face multiple times. While this altercation was transpiring, Mrs. Fuchs was yelling for help, and Mr. Fuchs was screaming "Let us go! Let us go! Let us go!!" as Marcellino began driving the Pontiac forward. Muni employee Arnold testified that he was alerted to the incident because he heard Mrs. Fuchs yelling for help as he drove nearby. In light of this evidence, it is simply not credible to believe that Marcellino could possibly have been unaware of the nature of the confrontation that was occurring mere inches to feet away from him. There was not, as Marcellino would have it, "significant circumstantial evidence that [he], either through mistake or ignorance of fact, did not know that the passengers in his car had taken hold of the Fuchs [sic] and thus he was not aware that his action in driving could result in the application of force to them . . . ."
IV
The Prosecutor Did Not Commit Misconduct Nor Did
She Deprive Mechikoff of Due Process or Equal Protection
By Offering a Plea Bargain as a Package Deal
At various points during the pretrial proceedings, prosecutor Suzy Loftus offered a negotiated disposition to defendants. In August 2008, just weeks after Judge Mitchell had declared the mistrial, Ms. Loftus was willing to accept a plea of guilty to the charge of assault with force likely to cause great bodily injury, in exchange for which defendants would have received three years probation. Marcellino would have been required to serve a year in county jail concurrent with a parole violation, while Mechikoff would have been sentenced to six months in county jail with the provision that he would be released at the time of sentencing (approximately three weeks from the date the plea would have been entered). Both defendants rejected the offer, and Ms. Loftus formally withdrew it on August 21, 2008.
In early October 2008, shortly before the second trial commenced, Ms. Loftus made a final offer to defendants, an offer that was a "package deal" that had to be accepted by both defendants in order to be valid as to either one. (See, e.g., In re Ibarra (1983) 34 Cal.3d 277, 286 [package deal is one in which "the prosecutor offers a defendant the opportunity to plead guilty to a lesser charge, and receive a lesser sentence, contingent upon a guilty plea by all codefendants"].) In exchange for a plea of guilty to one misdemeanor count of elder abuse, Mechikoff would have received three years probation and 60 days in county jail with a waiver of credits. Marcellino was offered a year in county jail with a waiver of 60 days credits, in exchange for a guilty plea to two non-strike counts of section 245 assault. When the trial court inquired of Mechikoff's counsel whether his client was interested, counsel responded: "Your Honor, I didn't actually discuss the specifics of the disposition with my client because of the fact that, as I was walking into the tank, Mr. Zisholz [counsel for Marcellino] informed me that his client was rejecting the offer, but I did discuss with my client the general concept of the disposition and he was on board." Marcellino's counsel confirmed that his client rejected the offer and wanted to proceed to trial.
Mechikoff now contends that Ms. Loftus committed misconduct and deprived him of due process and equal protection by making the plea bargain a package deal. We easily dispose of Mechikoff's claim, on both procedural and substantive grounds.
Mechikoff did not object below that the package deal offer constituted prosecutorial misconduct and deprived him of his right to due process and equal protection. He has thus waived his right to raise these claims on appeal. (People v. Lopez (2008) 42 Cal.4th 960, 966 [failure to object to alleged misconduct waives claim on appeal]; People v. Burgener (2003) 29 Cal.4th 833, 869 [failure to assert constitutional claims below waives them on appeal].) Waiver aside, the claims are also meritless.
A criminal defendant has a state and federal constitutional right to a jury trial. (U.S. Const., 6th, 7th, 14th Amends; Cal. Const., art. I, § 16.) It is also constitutional to allow a defendant to waive his jury trial right and accept a plea bargain. (In re Lewallen (1979) 23 Cal.3d 274, 280-281; People v. Collins (2001) 26 Cal.4th 297, 305.) Where more than one person is charged, the prosecutor may enter into a "package deal" plea bargain with all of the defendants. Our Supreme Court has condoned the use of package deals, recognizing their potential benefit: "We recognize that the 'package-deal' may be a valuable tool to the prosecutor, who has a need for all defendants, or none to plead guilty. The prosecutor may be properly interested in avoiding the time, delay and expense of trial of all the defendants. He [or she] is also placed in a difficult position should one defendant plead and another go to trial, because the defendant who pleads may become an adverse witness on behalf of his codefendant, free of jeopardy. Thus, the prosecutor's motivation for proposing a 'package-deal' bargain may be strictly legitimate and free of extrinsic forces." (In re Ibarra, supra, 34 Cal.3d at p. 289, fn. 5.) Such package settlements are valid so long as the terms are not coercive. (Id. at pp. 286-290; Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056.) There is no suggestion here that the offered deal was coercive, and there was no misconduct.
V
Mechikoff Has Failed To Demonstrate That Judge
Douglass Imposed a Vindictive Sentence When He
Sentenced Mechikoff To Four Years in State Prison
In his final argument, Mechikoff complains that his four-year state prison sentence, which was based on the four-year upper term for one of the assault with a deadly weapon charges, was punishment for having exercised his right to trial. This was evidenced, he contends, by the fact that prior to trial, prosecutor Loftus was willing to accept his plea to a misdemeanor, had the plea bargain not been scuttled by Marcellino's refusal to agree to it. Mechikoff argues that "[n]one of the facts of the case, known to the prosecution, had in fact changed after the trial from what they had been before. [¶] No other explanation exists for the prosecutor's desire for a more severe sentence other than the fact that [Mechikoff] went through a trial."
We note that Mechikoff never accepted the deal the prosecutor offered. His counsel admitted to the court that he had not discussed the specifics of the offered disposition with Mechikoff. At most, Mechikoff was merely amenable to the "general concept of the disposition."
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As our Supreme Court has noted, "The mere fact . . . that following trial defendant received a more severe sentence than he was offered during plea negotiations does not in itself support the inference that he was penalized for exercising his constitutional rights." (People v. Szeto (1981) 29 Cal.3d 20, 35.) Mechikoff has not cited any statements by Judge Douglass giving rise to an inference that the judge was penalizing him for exercising his right to a jury trial. To the contrary, in imposing the four-year upper term, Judge Douglass expressly noted that the sentence was based on the fact that the circumstances in aggravation outweighed the circumstances in mitigation. He cited Mechikoff's prior violent conduct and numerous adult convictions, the fact that he was on four misdemeanor grants of probation at the time of the assault, and that he had previously performed poorly under formal supervision as circumstances in aggravation. At the same time, Judge Douglass found no circumstances in mitigation.
Further, there are numerous reasons a prosecutor might offer a plea bargain that involves a lighter sentence than the defendant might receive if he or she goes to trial. As a general matter, a prosecutor has an incentive to avoid the time and expense involved with a trial that could conceivably result in an acquittal of the defendant. A negotiated disposition, which compensates for any potential evidentiary weakness, guarantees a conviction.
Specifically in this case, Ms. Loftus explained that the deal was motivated by a desire to avoid subjecting the Fuchses to the hardship of having to participate in a second trial: "Part of the consideration for the misdemeanor offer was not putting the then 73-year-old man through another trial, forcing him to testify again about what happened, and certainly then having his wife have to testify. It was contemplating those considerations, which turned out to be quite significant, putting him through testifying again, being cross-examined by two attorneys, his wife cross-examined. Having the suggestion be put before the jury that somehow she is a bought-and-paid-for person who he brought to this country was devastating to these people, absolutely devastating. Ms. Fuchs had to be called a hooker while she was taking the stand to testify about what happened to her. And in anticipation of trying to protect these people from further pain, I considered resolving the case along those lines."
In light of these considerations, and the absence of any evidence suggesting that Judge Douglass imposed the four-year term on Mechikoff to punish him for exercising his right to a jury trial, we conclude that Mechikoff's claim is without merit.
DISPOSITION
The judgments of conviction are affirmed.
Richman, J. We concur: Haerle, Acting P.J. Lambden, J.