Opinion
F073330
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL MATTHEW MENDEZ, Defendant and Appellant.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF162078A & BF128633A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Paul Matthew Mendez appeals his convictions on one count of inflicting corporal injury on a significant other in a dating relationship (Pen. Code, § 273.5, subd. (a)) and one count of assault with force likely to produce great bodily injury (§ 245 subd. (a)(4)). Appellant also appeals the terms of his sentence, that included two one year enhancements under section 667.5. For the reasons set forth below, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying incident of domestic violence in this case occurred on Halloween morning in 2015, but was not reported to police until November 2. The victim was appellant's girlfriend of about a year and was approximately nine-months pregnant with his child, giving birth to the child roughly two weeks after the incident occurred.
According to the victim, she went to work at 3:00 p.m. on October 30, and concluded her shift at midnight. Knowing appellant was out drinking with some friends, the victim went to check on him and see if he was ready to come home. Appellant told the victim he wanted to stay out and the victim headed home and went to bed.
Around 3:30 a.m. that morning, the victim heard knocking on the door to her house. Assuming it was appellant and knowing she didn't want to bother him if he had been drinking, she gathered her pillow and blanket and placed them on the couch. She then went to the door to let appellant enter.
When she opened the door, appellant appeared upset. He asked why it had taken her so long to let him in. The victim apologized and explained she had been sleeping, before lying down on the couch to get back to sleep. As she lay down, she heard appellant come in the house and walk up behind her. She then felt appellant strike her on the side of the face multiple times. Appellant then began choking the victim, before dragging her off the couch by her hair. Appellant lifted the victim up from the ground by her arm, pulled her to the bedroom, and threw her on the bed, telling her to shut up. Appellant left the victim on the bed and went into another room for about 15 minutes before returning, lying down, and telling the victim to place her head on his chest. Appellant then fell asleep.
The victim did not call the police or otherwise report appellant's behavior at that time, claiming she had wanted to but could not because appellant had taken her phone. She then went to work from noon until 6:00 p.m. on the 31st, but did not call the police then, claiming she was concerned because her other children were still with appellant. Appellant, the victim, and her children then went to the victim's brother's house for Halloween, spending the night there. The victim did not report any abuse to her brother and the police were not called. On November 2, the victim drove appellant to Delano so appellant could spend his birthday with friends. On the way back, the couple argued because appellant was texting another woman with whom he was also romantically involved.
That night, two police officers arrived at the victim's home to conduct a welfare check. Earlier that day, the victim had spoken with appellant's mother and appellant's mother had then called the police, asking them to check on the victim. Both officers spoke with the victim away from appellant and both testified to seeing significant bruising on the victim's face and additional bruising on her chest, arms, forearm, and neck. Pictures were taken of this bruising and, although the pictures were blurry, both officers and the victim could point to the bruises shown in the pictures and testified they depicted the victim's injuries.
Relevant to the issues in this case, prior to trial appellant's counsel moved in limine to exclude from evidence any jail calls and any statements attributed to appellant made outside of court. During the in limine discussions, the prosecutor informed the court that the victim reported receiving a phone call from appellant just before the trial. In that call, appellant told the victim to testify that she had made up the incident in question and said he would tell his counsel she had made up the story. Although the call came from a booking number different than that assigned to appellant, the victim recognized appellant's voice during the call. Appellant's counsel sought to exclude reference to this call on relevance grounds and requested, if the call was not excluded, to sanitize the testimony so that it did not imply that appellant and appellant's counsel were conspiring to generate false testimony. The trial court ultimately admitted the expected testimony but required it be sanitized as requested.
During the victim's direct testimony at trial, she was asked about subsequent contacts with appellant. That led to the following exchange regarding visits at the jail and the previously mentioned phone call:
"Q Have you been in contact with the defendant since he was arrested?
"A Yes.
"Q Have you gone to visit him at jail?
"A Yes.
"Q How many times have you gone to visit him?
"A Like, maybe, three or four times.
"Q Why did you go visit him?
"A The first time I went to take the baby.
"Q You took the baby to go see him?
"A Yes.
"Q Why did you take the baby with you?
"A Because I wanted him to see him.
"Q You wanted him to see his son?
"A Yes.
"Q Were you going to see him at the jail because you wanted to get back together with him?
"A I wanted to apologize for everything that was happening.
"Q Why did you want to apologize?
"A Because this is not going like I pictured, the way it turned out.
"Q Were you apologizing because you did something wrong?
"A I know I didn't, but I felt like I did.
"Q Have you lied about anything that you just testified to today?
"A No.
"Q Are you just sorry that you are both in this situation?
"A Yeah.
"Q Okay. [¶] Has he called you from the jail recently?
"A Yes.
"Q Did he call you some time last week?
"A Yes.
"Q Do you remember what day of the week he called you?
"A It was on Thursday." (Unnecessary capitalization omitted.)
The victim then testified more thoroughly about the call, although she did not again mention that it came from the jail. The only objection during this line of questioning came when the prosecutor asked the victim why she did not initially know who was calling. That objection was sustained, appearing to prevent the victim from explaining anything about the booking number discrepancy.
During closing arguments, the prosecutor made one reference to the jail call, noting that "the defendant didn't want her [the victim] to come in here and say this. He called her from the jail just last week." At this point appellant's counsel objected and asked for a sidebar. During that sidebar, counsel asked for a mistrial based on the prosecutor referencing the fact appellant was in jail. The trial court denied the motion because the fact appellant was in jail after the incident and up until shortly before trial had been elicited in the prior trial testimony and therefore the prosecutor's reference to that fact was not misconduct.
The jury ultimately convicted appellant of both charged offenses. Prior to sentencing, appellant filed a petition seeking to reduce a 2009 felony conviction under section 496d to a misdemeanor pursuant to Proposition 47. The one page petition simply listed the prior offense and requested a hearing. The People opposed, arguing the conviction was not eligible. The court held a hearing on the petition. At that time the court expressed its belief that the crime of possessing a stolen vehicle was not included in the scope of Proposition 47. Appellant's counsel argued that she felt the crime could qualify if the vehicle was valued at less than $950, but immediately conceded she did not "know what the value of the car was." The court then denied the petition, stating it did not believe the crime was included.
Appellant was later sentenced to a determinate term of six years, with four years based on the section 273.5 conviction and two one year enhancements under section 667.5. This appeal timely followed.
DISCUSSION
Appellant raises two related issues concerning his underlying convictions and one additional issue regarding sentencing. With respect to his convictions, appellant contends his trial was tainted by references to the fact he was incarcerated at the time of trial. This taint ultimately led to prosecutorial misconduct during closing arguments when the prosecutor referred to the fact appellant was in jail. In addition, appellant contends he received ineffective assistance of counsel because his trial counsel failed to seek to exclude any references to the fact he was incarcerated from the trial. With respect to sentencing, appellant argues the trial court wrongly refused to reduce his prior conviction under section 496d to a misdemeanor, or otherwise allow him to introduce evidence to prove it should be reduced, and therefore improperly included a one-year enhancement under section 667.5 related to that crime. Alleged Prosecutorial Misconduct
Standard of Review and Applicable Law
" 'Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " ' [Citations.] In addition, ' "a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" ' [Citation.] Objection may be excused if it would have been futile or an admonition would not have cured the harm." (People v. Dykes (2009) 46 Cal.4th 731, 760.)
Where properly preserved, allegations of prosecutorial misconduct are reviewed, on the merits, de novo. (See People v. Fuiava (2012) 53 Cal.4th 622, 681.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555 (Bolden).)
The Trial Court Did Not Error in Denying the Mistrial Motion
Appellant alleges prejudicial prosecutorial misconduct based on the prosecutor's single reference during closing arguments to the fact appellant called the victim from jail shortly before trial, alleging this reference inferred that appellant was in custody during the trial and thereby undercut the principle that he should be presumed innocent. We do not agree.
The evidence admitted without objection at trial indicated that appellant called the victim from jail on the Thursday prior to the trial. The prosecutor's closing argument made a single reference to the fact that appellant called the victim from the jail the week before. Contrary to appellant's arguments, this reference did not indicate appellant remained in jail during the trial and is consistent with the evidence that appellant was in jail the week before trial. Further, the reference was not part of an argument that the jury should consider the fact appellant was in jail, but arose in the context of explaining the depth of the conflict the victim felt about testifying. The defense to this case sought to paint the victim as lying based on discrepancies in how she recounted the incident over time and her past admission to self-harming activity. To oppose this, the prosecutor put on evidence and argued that these discrepancies arose because the victim was attempting to minimize the events due to her strong feelings for appellant and their child together. Prosecutors have wide latitude in their closing arguments, provided the argument " ' " ' "amounts to fair comment on the evidence," ' " ' " and this reference to admitted evidence falls within that range. (People v. Gamache (2010) 48 Cal.4th 347, 371.)
However, even if we found the comment to be improper, we would find no prejudice in its admission. A fleeting reference to a defendant's incarceration does not compel a trial court to grant a mistrial. (See People v. Friend (2009) 47 Cal.4th 1, 63-64 [finding no prejudice from brief reference to prior jail time].) In Bolden, for example, a police officer testified that the defendant's present address was " 'the Department of Corrections parole office. . .' " thus inferring the defendant had recently been incarcerated. (Bolden, supra, 29 Cal.4th at pp. 554-555.) The trial court denied the defendant's motion for a mistrial and the Supreme Court found no abuse of discretion, reasoning it was "doubtful that any reasonable juror would infer from the fleeting reference to a parole office that defendant had served a prison term for a prior felony conviction" and that the "incident was not significant in the context of the entire guilt trial." (Id. at p. 555.) The reference to appellant's incarceration here was certainly fleeting. In the context of a discussion of the victim's reasons for minimizing the incident, the prosecutor made one reference to a fact already in the record, that appellant had called the victim from jail and asked her to say the incident had not occurred. An objection was immediately raised and the prosecutor did not return to the topic. Considering the fleeting nature of the reference, the strength of the case overall, and the court's instructions to the jury that it should not be prejudiced against appellant just because he was arrested, we conclude the trial court did not err in denying appellant's request for a mistrial based on the prosecutor's reference to the fact he was in jail shortly before trial. Alleged Ineffective Assistance of Counsel
Standard of Review and Applicable Law
To establish ineffective assistance of counsel, appellant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
"Tactical errors are generally not deemed reversible; and counsel's decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. . . .' " (People v. Hart (1999) 20 Cal.4th 546, 623-24.) "In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law." (Strickland, supra, 466 U.S. at p. 694.)
Appellant Does Not Demonstrate Prejudice
Appellant contends his counsel was deficient in not seeking to exclude references to his incarceration from the trial. Appellant argues this failure was prejudicial because this was a close case turning on the credibility of the witnesses. To make this argument, however, appellant glosses over the physical evidence in the form of pictures showing the victim's bruising by arguing they were "not clear." Appellant then suggests that the victim's failure to report the attack, discovery of appellant's cheating, and inconsistent testimony demonstrates that, without the improper references to appellant's jail status, the jury would reasonably have credited appellant's trial defense—that the victim made up the charges and harmed herself to demonstrate injuries—and acquitted appellant. We do not agree.
The record demonstrates that the victim did not call the police and, apparently, only knew they might arrive because appellant's mother said she would call the police. Relatedly, the police officers both testified that the victim had significant bruising when they saw her and, despite any flaws in the images taken, could point out those injuries on the pictures submitted to the jury. The inferences required to accept appellant's trial defense, that the victim somehow knew the police were soon to arrive and injured herself in the manner seen by the officers in order to frame appellant, are difficult to make in light of the other evidence supporting the victim's testimony. Moreover, the transient nature of the references made and the singular fleeting reference to appellant's jail status do not significantly affect these facts. Accordingly, this is not the type of close case, driven by credibility disputes and affected by errors bearing significantly on those disputes, that demonstrates prejudice. (Cf. People v. Centeno (2014) 60 Cal.4th 659, 676-677 [case turning almost exclusively on victim's credibility prejudiced by argument misconstruing burden of proof].) Alleged Error for Failure to Reduce His Prior Conviction
Appellant contends the trial court wrongly denied his petition to reduce his prior felony conviction under section 496d to a misdemeanor. This alleged error resulted in the imposition of a one-year sentence enhancement that appellant contends should not have been included in his sentence.
Standard of Review and Applicable Law
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be "resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." ' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.) Thus, where a petitioner's underlying offense demonstrates their conviction qualifies as a theft offense (i.e.—taking property with the intent to permanently deprive the owner of its possession), resentencing is available. (See People v. Page (2017) 3 Cal.5th 1175, 1182-1184 (Page) [considering convictions under the theft component of Veh. Code § 10851 eligible for resentencing].)
The trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.18, subd. (b).) However, a petitioner has the initial burden of introducing facts sufficient to demonstrate eligibility, "including by providing in the petition a statement of personally known facts necessary to eligibility." (Page, supra, 3 Cal.5th at p. 1188; see People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.)
Appellant's Petition Failed to Demonstrate Eligibility
Appellant argues that convictions for knowingly purchasing or receiving stolen property under section 496d qualify as theft offenses under Proposition 47. We note that this issue is the subject of a split of opinion between the various courts of appeal. (Compare People v. Williams (2018) 23 Cal.App.5th 641, 644, 649-650 [§ 496d constitutes a theft-related offense] with People v. Varner (2016) 3 Cal.App.5th 360, 367 [rejecting claim § 496d is affected by Proposition 47].) However, we need not venture into this dispute under the facts of this case.
The California Supreme Court granted review in Varner on November 22, 2016, in case No. S237679. The matter was dismissed following the court's decision in People v. Romanowski (2017) 2 Cal.5th 903. --------
In this case, the record is completely silent on the value of the vehicle subject to the section 496d conviction. There was no evidence, either in prior conviction records or prospective testimony from appellant, as to the relevant vehicle's value. Moreover, at the hearing on appellant's petition counsel conceded she had no evidence of the vehicle's value, despite arguing that the value of a vehicle was relevant in resentencing proceedings under Vehicle Code section 10851. The lack of evidence regarding the value of the vehicle demonstrates the petition was properly denied at that time. (Page, supra, 3 Cal.5th at pp. 1189-1190.) Further, because no set of facts in the record before us demonstrate appellant was eligible for resentencing, we have no occasion to consider appellant's separate argument that equal protection concerns require section 496d be included in Proposition 47. (See Page, at pp. 1188-1189.)
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.