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People v. Mascrenas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 18, 2012
2d Crim. No. B227992 (Cal. Ct. App. Jan. 18, 2012)

Opinion

2d Crim. No. B227992

01-18-2012

THE PEOPLE, Plaintiff and Respondent, v. RICHARD MASCRENAS, Defendant and Appellant.

John Derrick, 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, Linda C. Johnson, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 1310273)

(Santa Barbara County)

Richard Mascrenas appeals the judgment following his conviction for attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187, subd. (a)), assault with a deadly weapon likely to produce great bodily injury (§ 245, subd. (a)(1)), residential burglary (§ 459), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), criminal threats (§ 422), stalking (§ 646.9, subd. (a)), cutting a telephone line (§ 591), and unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). The trial court found allegations to be true that Mascrenas had a prior serious or violent felony conviction for purposes of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and for purposes of section 667, subdivision (a)(1).

All statutory references are to the Penal Code unless otherwise stated.

Mascrenas contends there was no substantial evidence that the attempted murder was premeditated, the burglary occurred, or dissuading a witness was by force or threat, and that the trial court committed instructional error by not instructing on misdemeanor dissuasion of a witness and by instructing on consciousness of guilt. He also claims section 654 error. We affirm.

FACTS

On February 23, 2009, Katie Gomez lived in Guadalupe, California, with her three children, Matthew H. aged 26, Myra H. aged 16, and Vincent H. aged 14.Mascrenas and Gomez had been dating intermittently for 13 years but, at the time of the offenses, they lived in separate residences and were not dating.

Matthew H., as well as the minor children, will be identified by their first names for purposes of convenience.

The evidence at trial included testimony regarding statements made by Gomez, Matthew, Vincent, and Myra to the police. At trial, Gomez and Matthew recanted their statements to the police and, to some extent, Myra and Vincent's testimony was inconsistent with their prior statements to the police.

According to the statements by Gomez and her children to the police, Mascrenas telephoned Gomez approximately 30 times during the night of February 22, 2009. Most of the calls were threatening and Mascrenas threatened to kill Gomez during the final call. Gomez was angry with Mascrenas because she thought he had stolen her jewelry.

Shortly before 7:00 a.m. on February 23, Mascrenas came to the Gomez house and forced his way in through a patio door. Sixteen-year-old Myra unsuccessfully attempted to keep him out of the house. Once inside, Mascrenas went towards Gomez's bedroom. Myra, now assisted by Matthew, attempted to hold Mascrenas back.

Gomez came out of her bedroom. When Myra grabbed the telephone, Mascrenas told her she better not call the police. Myra hid the telephone in her jacket and went into the bathroom. She tried to call the police from the bathroom but the telephone was not working. Gomez also tried to call the police from an inoperative telephone.

Mascrenas and Gomez argued. They went into her bathroom and continued to argue. Mascrenas stated that he was going to kill Gomez. Mascrenas went into the kitchen, got a knife, and returned to the bedroom where he attempted to stab Gomez several times. According to Myra, Gomez was pleading for Mascrenas not to hurt her. Matthew, Myra and Vincent struggled with Mascrenas and were able to prevent his knife thrusts from striking Gomez. Gomez ran out of the house.

Within a few minutes of the incident, police officers Antonio Magana and Salvador Curiel arrived at the Gomez house in response to a domestic violence report. Vincent was standing in the street and told the officers that Mascrenas had forced his way into the house and threatened to kill Gomez. The officers entered the home and saw Gomez in a state of shock. She pointed to a knife on the floor and handed Officer Magana a telephone that was not operating. She told the officers that Mascrenas had tampered with the telephone line but was otherwise too upset to be interviewed.

The officers confirmed there was no dial tone on the telephone, and that the lid to the telephone box outside the house had been removed. The wiring was disconnected. There was no rust, dirt or debris on the wires or the lid.

Officer Magana went back into the house and the two officers interviewed Matthew, Myra, and Gomez. Gomez and her three children gave similar accounts of the incident and signed written witness statements.

The testimony offered at trial by Gomez and her children was substantially different. Gomez testified that Mascrenas never threatened to kill her, did not get a knife, and did not attempt to stab her. She claimed she made up the accusations in her statement to the police because she thought Mascrenas had taken her jewelry and was angry. Matthew also testified that his statements to the police were false and that he lied because he did not like Mascrenas. He testified that he did not see or hear Mascrenas threaten Gomez, and did not see Mascrenas push or attempt to stab her. Vincent testified that he did not remember much, but heard Mascrenas make some threats to his mother. Myra testified that there was some pushing, that she feared Mascrenas would hurt her mother, and that Mascrenas had a knife and said he could go to jail for killing her.

Mascrenas was sentenced to a determinate prison term of five years eight months plus an indeterminate term of 19 years to life. The indeterminate term for the attempted murder consisted of seven years to life, doubled to 14 years as a second strike, plus five years pursuant to section 667, subdivision (a). The determinate term consisted of three years doubled for dissuading a witness (selected as the principal term), eight months doubled for cutting a utility line, one year doubled for taking a car, and eight months doubled for making criminal threats. Sentences for the assault, burglary and stalking were imposed but stayed pursuant to section 654.

DISCUSSION


Substantial Evidence Supports Convictions

1. Standard of Review

Mascrenas claims there was insufficient evidence to support his convictions for attempted murder, burglary, and dissuading a witness by force or threat. In assessing the sufficiency of evidence, a reviewing court considers the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence, that is, "evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Burney (2009) 47 Cal.4th 203, 253.) We presume all facts in support of the judgment which could be deduced from the evidence, and do not reweigh the evidence or redetermine credibility. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Reversal is warranted only if there is no substantial evidence to support the conviction under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

2. Substantial Evidence Supports Premeditated Attempted Murder

An attempted murder requires the specific intent to kill and a direct but ineffectual act toward accomplishing the killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) An attempted murder "'. . . is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.'" (People v. Jurado (2006) 38 Cal.4th 72, 118.) In reviewing a finding of premeditation and deliberation, courts should consider evidence of preexisting motive, planning activity, and the manner of killing, but these factors need not be present in any particular combination. (Id. at pp. 118-119.) The amount of time involved is not critical. "'. . . Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .'" (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)

In this case, there is substantial evidence that the attempted murder was premeditated and deliberate. Such evidence includes numerous telephonic threats by Mascrenas made hours before the incident, disconnecting the telephone line before entering the house, and forcible entry into the Gomez house on the morning of the offenses. Moreover, the period during which Mascrenas went into the kitchen to obtain a knife, standing alone, is substantial evidence of premeditation and deliberation.

3. Substantial Evidence Supports Burglary Conviction

Burglary requires an unlawful entry with the specific intent to commit theft or any felony. (§ 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041.) The element of intent "is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence." (People v. Holt (1997) 15 Cal.4th 619, 669.) Here, evidence of 30 telephonic threats the evening and night before the attempted murder as well as evidence that Mascrenas forced his way into the house strongly support a finding that Mascrenas unlawfully entered the Gomez house to commit assault and murder.

4. Substantial Evidence of Dissuading a Witness by Force

Mascrenas was convicted of dissuading a witness, "accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person." (§ 136.1, subds. (b)(1), (c)(1).) The finding of force or threat was based on evidence that, when Myra was holding the telephone, Mascrenas stated that she "better not" call the police.

There is no requirement that a defendant must say specific words to violate section 136.1 by force or threat. The entire interaction between the defendant and witness should be considered in determining whether defendant's words or actions reveal an express or implied threat of force or threat to discourage a victim from reporting a crime. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344; People v. Hallock (1989) 208 Cal.App.3d 595, 607.)

A reasonable jury could conclude that Mascrenas's statement that Myra "better not" call the police was a threat and that Mascrenas was prepared to act on the threat. Mascrenas's claim that the threat was made before a crime was committed is factually inaccurate. Although the attempted murder had not yet occurred, Mascrenas had cut the telephone lines, broken into the house, and threatened Gomez.

No Instructional Error Regarding Dissuading a Witness

Mascrenas contends the trial court erred by not instructing the jury on misdemeanor dissuading a witness. We disagree.

Section 136.1, subdivision (b) makes it a crime to attempt to prevent or dissuade a victim or witness from reporting a crime to law enforcement. The offense may be punished as either a misdemeanor or felony. But, if it is committed under one or more of the circumstances set forth in subdivision (c), the offense is necessarily a felony. (§ 361.1, subd. (c); People v. Hallock, supra, 208 Cal.App.3d at p. 606.) There is no separate misdemeanor offense of dissuading a witness. The offense is a "wobbler" when there is no finding of a subdivision (c) circumstance, and a straight felony when there is such a finding.

Here, the trial court correctly and completely instructed the jury regarding the basic section 136.1, subdivision (b) offense, and the additional subdivision (c) allegation that Mascrenas committed the offense through the use of force or threat. The court instructed the jury that it could convict Mascrenas of dissuading Myra from making a report to the police under subdivision (b)(1). (CALCRIM No. 2622.) The court further instructed that "[i]f you find the defendant guilty of intimidating a witness, you must then decide whether the People have proved the additional allegations that the defendant acted maliciously and used or threatened to use force." (CALCRIM No. 2623.) Accordingly, the jury was instructed properly on both "misdemeanor" and felony dissuading a witness and informed of its option to convict Mascrenas of one or the other. There was no instructional error.

No Error in Instructing on Consciousness of Guilt

Mascrenas contends the trial court erred by instructing the jury on consciousness of guilt. He argues that there was no evidence to support the instruction. We disagree.

The trial court instructed with CALCRIM No. 371 as follows: "If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."

CALCRIM No. 371 informs the jury that certain types of conduct may show a consciousness of guilt on the part of the defendant. The instruction allows the jury to determine the weight and significance of such conduct, and cautions the jury that the conduct in itself is insufficient to prove guilt. The instruction may be given only if there is sufficient evidence which, if believed by the jury, would permit a reasonable jury to draw the suggested inference of consciousness of guilt. (People v. Hart (1999) 20 Cal.4th 546, 620; see also People v. Coffman (2004) 34 Cal.4th 1, 102.)

Here, a telephone conversation between Mascrenas and Gomez while Mascrenas was in jail constitutes sufficient evidence to support the consciousness of guilt instruction. Although his words were somewhat indirect, portions of the conversation reasonably could be interpreted as an attempt by Mascrenas to dissuade Gomez from testifying against him. Further, consciousness of guilt can be inferred from Mascrenas's statements that his actual conduct was not as bad as the prosecution was claiming, and by implying that it was all the fault of Gomez.

The relevant portion of the conversation included the following exchange:

"[M (Mascrenas)]: The thing--the thing is though are you willing to go up there and . . . get on the stand . . .
G (Gomez)]: And testify? Yeah. Why not?
[M]: Yeah. Not against me.
[G]: No, not against you, no. No.
[M]: But you really--man, come on.
[G]: Because I didn't do anything wrong. I didn't - I mean you didn't do.
[M]: No but this is ridiculous.
[G]: But they overdid it.
[M]: ...........................................................
[M]: No, no, no, they didn't. You did.
[G]: Oh, you're blaming me.
[M]: Oh, come on, man.
[G]: There you go again.
[M]: I would never fucking do the shit you did.
[G]: There you go.
[M]: I would never do that.
[G]: Oh, man.
[M]: I would never in a million years do that shit that
[G]: Of course, what do I--I'm a girl.
[M]: . . . that you're doing."

No Error in Denial of New Trial Motion

Mascrenas contends the trial court erred by denying his motion for a new trial of the telephone line cutting offense. He claims the trial court failed to independently review the evidence, and that the evidence was insufficient. We disagree.

A defendant may move for a new trial on the ground that the verdict is contrary to the evidence. (§ 1181, subd. 6.) In considering such a motion, the trial court independently weighs the evidence acting as a "13th juror" to assure itself that the evidence as a whole is sufficient to sustain the verdict. (People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6; People v. Dickens (2005) 130 Cal.App.4th 1245, 1251.) We review a trial court's ruling on a motion for new trial under the abuse of discretion standard. (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637-643; People v. Lewis (2001) 26 Cal.4th 334, 364.) We find no abuse of discretion in this case.

Substantial circumstantial evidence shows that Mascrenas cut the telephone line behind the Gomez house prior to forcing his way into the house. Evidence shows that the telephone was working properly the preceding night, the cover of the telephone box had been recently removed, and the wires were unconnected at the time of the incident. In addition, the absence of rust on the wires indicated that the removal of the cover and disconnection were recent.

Mascrenas cites a comment by the trial court that the evidence on the telephone line cutting offense was "a little bit questionable," and argues that the comment indicates the court believed there was reasonable doubt regarding the offense. A review of the entire record reveals that the trial court's comment was not intended as a finding and, if anything, indicated that the court independently weighed the evidence and concluded that a new trial was not warranted.

Separate Punishment for Criminal Threats Permitted by Section 654

Mascrenas contends that section 654 prevents separate punishment for the criminal threats offense because the threats were part of an indivisible course of conduct that culminated in the attempted murder. He claims the threats were merely a verbal "component" of his attempt to stab Gomez and expressed no more than his intent to kill. We disagree.

Section 654 precludes multiple punishment for a single act or multiple acts comprising an indivisible course of conduct. (E.g., People v. Hester (2000) 22 Cal.4th 290, 294; People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Whether a course of criminal conduct is indivisible depends on the person's intent and objective. (Jones, at p. 1143.) A defendant may be punished only once for multiple offenses with a single objective and intent, but punishment for each offense committed for different objectives and with different intents is permitted. (Ibid.) A section 654 determination is a question of fact, and a reviewing court will uphold a trial court ruling if it is supported by substantial evidence. (People v. Harrison (1989) 48 Cal.3d 321, 335.)

Here, substantial evidence supports the trial court's finding that Mascrenas committed the criminal threats and attempted murder offenses for different purposes and with different intent. In committing the attempted murder, Mascrenas had the intent to kill Gomez. Substantial evidence supports the trial court's implied finding that repeated threats to Gomez's life and safety were intended to frighten and intimidate Gomez in order for Mascrenas to impose his will on her. There was no violation of section 654.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

James F. Iwasko, Judge


Superior Court County of Santa Barbara

John Derrick, 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, Linda C. Johnson, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.


Summaries of

People v. Mascrenas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 18, 2012
2d Crim. No. B227992 (Cal. Ct. App. Jan. 18, 2012)
Case details for

People v. Mascrenas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RICHARD MASCRENAS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Jan 18, 2012

Citations

2d Crim. No. B227992 (Cal. Ct. App. Jan. 18, 2012)