Opinion
C083367
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. PETER BRIAN SHEARER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F05824)
After a jury found defendant Peter Brian Shearer guilty of elder abuse, assault with a deadly weapon, and making criminal threats against his neighbor, he moved for a new trial based on a newly discovered police report that concerned a mental health episode the neighbor suffered in 2000. The trial court denied the motion finding the police report merely constituted impeachment evidence, it was cumulative to other evidence that already showed the neighbor's mental instability, and it was unlikely the jury would have reached a different result had the report been presented. The court sentenced defendant to serve 14 years in state prison.
On appeal, defendant contends the court erred in denying his new trial motion because the police report showed the neighbor, the prosecution's primary witness, suffered from delusions thus making it likely the jury would have acquitted him had his counsel had the opportunity to use the report during cross-examination. He also contends the court erred under Penal Code section 654 in sentencing him for both the elder abuse offense and the criminal threats offense. We conclude the trial court did not abuse its discretion in denying defendant's new trial motion and defendant was properly sentenced. We therefore affirm.
Undesignated statutory references are to the Penal Code.
FACTS AND PROCEEDINGS
On September 21, 2015, both defendant and the 75-year-old victim were living in a male residential facility in downtown Sacramento. The multi-resident building had a long hallway with individual rooms on either side. A bathroom and kitchen were located along the hallway, and a laundry room was located across from the bathroom.
Around 9:00 p.m. that night, the victim came out of the bathroom and saw defendant sitting in a chair in the hallway. A few days before, defendant had angrily yelled at the victim, and the victim did not know what he had done to make defendant mad. Thus, to avoid a confrontation with defendant, the victim ran into the laundry room rather than return to his own room, which would have required him to walk past defendant.
Defendant got out of the chair and yelled at the victim, "You can't hide from me mother fucker." Defendant then followed the victim into the laundry room. The victim testified he felt trapped because there was no other exit except the door where defendant stood.
Defendant hit the victim several times with his fists in his chest. The victim was scared. Defendant told the victim he wanted him to return what the victim had stolen from him. The victim responded that he did not know what defendant was talking about.
The victim then put his hands in the air because he did not want to be hit anymore. He repeatedly asked defendant to stop hitting him. Defendant, while holding a knife to the victim's nose, told him "to shut [his] fucking mouth" or "I'll stab you right now." The knife pierced the outside of the victim's left hand, causing it to bleed profusely all over the laundry room.
After the victim was cut, defendant left the laundry room and returned to his room. The victim ran down the hallway and outside up some stairs to the residence of the house manager. The victim left a trail of blood as he went.
F., who lived in the residence with the manager, answered the door when the victim knocked. He testified the victim seemed unusually erratic and appeared to be scared and in shock. Although he admitted that on several occasions he had seen the victim rambling in an unfocused manner, he said the victim seemed more erratic and hyper than unusual.
F. noticed the victim's hand was bleeding. F. described the victim's wound as "bleeding quite a bit . . . it wasn't a gushing kind of a bleed but it was a continuous flow . . . ." F. helped staunch the bleeding with paper towels. According to F., the victim told him he had been downstairs in the laundry room area when he had a confrontation with defendant and defendant had cut him. F. later confirmed he had been present the entire time the victim was questioned by a police officer the night of the incident, and the victim had told the officer defendant had stabbed or sliced him near the downstairs laundry room.
The manager apparently called the police. Officers arrived a short time later. Officer Pangelinan took the victim's statement. He observed an approximately one-inch laceration on the victim's left hand. The victim told the officer a neighbor named "Pete" (the defendant) had accused him of stealing money, which he denied stealing. The victim said he was initially in the bathroom and he tried to get away from Pete, whom he saw in the hallway, by going into the laundry room. While in the laundry room, Pete confronted him, called him a "mother fucker," and hit him several times. When the victim asked Pete to stop hitting him, Pete said, "Shut up or I'll stab you right here." The victim described Pete holding a knife with a blade approximately three inches long. The victim also told Officer Pangelinan that Pete eventually went back to his room and slammed the door, and he then walked to the manager's residence to report the incident. Officer Pangelinan described the victim's demeanor as "afraid," and said the victim answered his questions the best he could.
In a follow-up interview several days later, the victim told Officer Kimberly Clarke essentially the same story he had relayed to Officer Pangelinan the night he was cut. He never told her the assault occurred in the kitchen or that there was any type of physical confrontation in or around the kitchen. When asked on cross examination whether the victim had ever said defendant accidentally cut him, Officer Clarke responded, "no."
During a field showup the night of the incident, the victim identified defendant as the person that assaulted him in the laundry room with the knife. Officers confiscated a knife with an unknown red substance on it, possibly blood, from defendant's room. It is not apparent from the record whether the residue on the knife was ever tested to determine if it was actually blood. Defendant was also found with blood on his left arm without any apparent wounds. Upon his arrest, both F. and the victim heard defendant yell to the victim, "I'm going to get you for this."
Defendant was charged in an amended information with elder abuse (§ 368, subd. (b)(1)--count one), assault with a deadly weapon (§ 245, subd. (a)(1)--count two), and making criminal threats (§ 422--count three). The information alleged defendant personally used a deadly and dangerous weapon, a knife, while committing the elder abuse and criminal threat offenses. (§ 12022, subd. (b)(1).) It was also alleged defendant had sustained a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12), and he had served a prior prison term (§ 667.5, subd. (b)).
The victim testified with some difficulty to the above-described events at trial. His testimony was often rambling and unfocused, and both the prosecutor and defense counsel struggled at times to get him to respond to the question asked. Several times he referred to himself in the third person. The victim did not recognize himself from a photograph taken of him on the night he was assaulted. He testified the person in the picture "looked like a total stranger."
On cross-examination, counsel asked if the victim suffered from a mental illness, and the victim confirmed he had an extreme inferiority complex. His inferiority complex made him feel inferior to every person in the world, and he even felt inferior to animals. He admitted he lacked any self-confidence. His condition made him afraid of everyone. Due to past bad experiences, he was frightened to be in a crowd or stand in line at a grocery store. The victim admitted he needed therapy with either a psychiatrist or a psychologist. When asked by defense counsel whether he had been placed on a "5150 hold" against his will before he moved to the house, he admitted he had. Although the prosecutor did not object to that line of questioning, defense counsel did not pursue the circumstances surrounding the 5150 hold further.
Under Welfare and Institutions Code section 5150, when a person, as a result of a mental health disorder, is a danger to himself or others or is gravely disabled, he or she may, upon probable cause, be taken into custody for up to 72 hours for assessment, evaluation, or treatment. (Welf. & Inst. Code, § 5150, subd. (a) (5150 hold).) --------
During his testimony, F. also alluded to the victim's mental issues. According to F., "[a] lot of times" the victim "generally ramble[d] unfocused." Of the approximately 15 times he had encountered the victim, on at least half of those occasions he was "rambling in an unfocused way." Officer Clarke also appears to have alluded to the victim's inability to focus. When asked on cross-examination whether she remembered if the victim ever said he believed defendant cut him accidentally, she responded, "you've met [the victim]. There were many different things that were said throughout our -- our times that we were together . . . ."
The prosecution introduced a video recording of several statements defendant made while seated in the back of the police car. Defendant at first said he was minding his own business watching television in his room, and he did not know what was going on. He then claimed he had lodged a complaint against the victim for robbing him, and the victim was falsely accusing him of assault in order to get revenge. He surmised the victim had "snuck" into his room, taken one of his knives to cut himself, and had "spilled some blood around" to get rid of him.
Several phone calls defendant made while incarcerated were also played for the jury. Contrary to what he initially claimed in the police car, defendant said the victim had been hiding in the dark kitchen and had startled him when he walked into the kitchen to turn on the light. Defendant said he was carrying the knife and raised his arm to protect himself. He described the incident as an "accident," and later said the victim "ran into [him]." Defendant also said the victim was "psychologic" and needed to be in a home. In another call, defendant conceded he was in jail "for stupidity."
The jury found defendant guilty of all charges and found the enhancements true. The court granted the prosecutor's motion to dismiss the prison prior allegation, and defendant admitted the serious prior felony.
Following his convictions, defendant moved for a new trial based on a newly discovered police report concerning the 5150 hold the victim referred to on cross-examination. Although the prosecutor had originally conducted a 10-year search for 5150 hold type records after the victim disclosed to his investigator prior to trial that he had been subject to a "recent" involuntary hold, no responsive documents were located. Once the victim testified the 5150 hold occurred "way before . . . 2003," the prosecutor conducted a further inquiry and located the police report on the 2000 incident preceding the involuntary hold. The prosecutor provided the report to the defense the following day even though the jury was already deliberating.
According to the police report, in 2000 the victim was found hiding in the bushes of his apartment complex. He was frightened that the apartment's security guard was trying to harm him. At the time, he was filthy and soiled. His apartment had no furniture and no food inside.
Defendant argued the newly discovered evidence of the victim's past mental instability should have been presented to the jury because it showed his inability to distinguish reality from irrational paranoia. The court denied the motion, finding it was clear to the court and the jury that the victim was suffering from mental health issues when he testified at trial. The 5150 hold report, in the court's view, constituted impeachment evidence that was cumulative to other evidence regarding the victim's mental instability and would not have impacted the trial in any way.
The court sentenced defendant to serve 14 years in prison calculated as follows: four years, doubled to eight years for the elder abuse offense, plus one year for use of the knife, a stayed three-year term, doubled to six years for the assault with a deadly weapon conviction, and a concurrent term of two years, doubled to four years for making criminal threats, plus one year for personal use of the knife, and five years for the prior serious felony conviction. (§ 667, subd. (a).) Defendant timely appealed.
DISCUSSION
I
Denial of New Trial Motion
Defendant contends the court erred in denying his motion for new trial, and the error violated his federal due process rights under the Fourteenth Amendment. We reject the contention.
Under section 1181, a trial court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he [or she] could not, with reasonable diligence, have discovered and produced at the trial." (§ 1181, subd. (8).) " ' " 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " ' " (People v. Howard (2010) 51 Cal.4th 15, 43 [court did not abuse discretion in denying motion for new trial based on newly discovered evidence]; People v. Verdugo (2010) 50 Cal.4th 263, 308-309 [no abuse of discretion in denying new trial motion]; People v. Minnick (1989) 214 Cal.App.3d 1478, 1481.)
In ruling on a motion for new trial based on newly discovered evidence, the trial court considers several factors, including whether the evidence is: (1) actually newly discovered, (2) not merely cumulative, (3) such as to render a different result probable upon retrial, (4) something the party, through reasonable diligence, could not have discovered and produced at trial, and (5) the best evidence of which the case admits. (People v. Howard, supra, 51 Cal.4th at p. 43.) The court may consider both the credibility and materiality of the evidence in determining whether it would render a different result reasonably probable on retrial. (Ibid.)
Here, we cannot say the trial court abused its discretion in denying defendant's motion for new trial. The court found that even assuming the police report was newly discovered, defendant, through reasonable diligence, could not have discovered and produced the report at trial, and the report was the best evidence concerning the 5150 hold, defendant did not show the evidence was more than cumulative impeachment evidence or it would have made a difference on retrial. Substantial evidence in the record amply supports the court's conclusions.
"Critically, '[a] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party." (People v. Hall (2010) 187 Cal.App.4th 282, 299.) Defendant admits the purpose of the 5150 hold evidence would be to undermine the credibility of the victim--the prosecution's key witness.
Even assuming it was more than impeaching or contradicting evidence, the victim's behavior precipitating the 5150 hold in 2000 would have added little to the impression already conveyed to the jury by the victim's own unfocused testimony, his concession on cross examination that he suffered from severe mental issues, and other witnesses' observations that the victim often muttered in a rambling manner. While the 5150 hold report states the victim was "very frightened of others," the victim himself admitted he had been placed on the 5150 hold, he suffered from a severe inferiority complex, he was frightened of everyone, and he needed psychiatric or psychological therapy.
Several times while testifying, the victim referred to himself in the third person. He did not recognize himself in a photo taken the night of the assault, saying the man in the photo "looked like a total stranger." The victim testified with great difficulty, often giving unresponsive and rambling answers. F. also testified the victim was known to frequently engage in unfocused ramblings, and Officer Clarke likewise alluded to a similar issue when she described her follow-up interview with him.
Given the above, it was made plain to the jury that the victim suffered from significant mental health issues. Thus, the jury had the opportunity to consider the victim's mental instabilities when evaluating his testimony.
This was not a case, moreover, where the victim gave conflicting accounts of what occurred. The victim's statements to F. and the police the night of the attack, his statement to Officer Clarke during the follow-up police interview a few days later, and his trial testimony were all generally consistent. The victim also identified defendant as his attacker during a field showup. By contrast, defendant offered several conflicting stories about what happened the night of the incident. He first denied having any knowledge of the events, then claimed the victim had broken into his room and cut himself using defendant's knife to get revenge on him, and then finally, only after he was incarcerated awaiting trial, did he assert he accidentally cut the victim in the kitchen when the victim startled him.
The physical evidence also tended to corroborate the victim's version of events rather than defendant's. Blood was found in the laundry room, down the hallway, up the back stairs, and at the manager's residence.
The physical evidence coupled with the victim's consistent statements and defendant's ever-changing stories in the police car and during his multiple jail phone calls all lent credence to the victim's version of events notwithstanding the fact he may have suffered from mental instability, either in the past or at trial. On this record, we cannot say the court abused its discretion in determining the evidence of the circumstances surrounding the victim's 5150 hold would not have been sufficient to render a different result. We conclude the court did not err in denying defendant's motion for new trial.
II
Section 654Defendant contends he threatened and abused the victim during a single course of conduct for which he may only be punished once under section 654. The trial court, however, imposed separate concurrent sentences for both the count one elder abuse conviction and the count three criminal threats conviction. Finding the trial court properly sentenced defendant on both convictions, we reject defendant's section 654 challenge.
Section 654 provides in pertinent part: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The statute does not prohibit multiple convictions for the same conduct, only multiple punishments. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." (Ibid.)
In any section 654 inquiry, the court must initially ascertain the defendant's objective and intent. (People v. Porter (1987) 194 Cal.App.3d 34, 38.) "If he [or she] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he [or she] may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (Ibid.) "Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it." (Ibid.)
The record in this case supports the trial court's implicit finding that threatening the victim and committing elder abuse against him involved multiple objectives even though they may have shared common acts or were otherwise parts of an indivisible course of conduct. Here, defendant could have repeatedly hit the victim and demanded his money without threatening to stab him if he did not stop talking. A reasonable inference from the evidence is that defendant had two distinct objectives.
In hitting the victim with his fists while holding the knife, defendant intended to abuse the victim until he gave defendant money that defendant professed to believe the victim had stolen from him. In threatening to stab the victim after he protested being hit, defendant intended to prevent the victim from becoming too loud and drawing the attention or help of the other residents. Because defendant committed multiple and divisible acts with distinct objectives, section 654 was not violated by sentencing him on both the elder abuse and criminal threats convictions. (See, e.g., People v. Mejia (2017) 9 Cal.App.5th 1036, 1047 [the defendant was properly sentenced for both torture and criminal threats because a reasonable trier of fact could conclude the criminal threats were in furtherance of a separate criminal objective, even if, in part, the threats were intended to break or beat the victim down emotionally and to discourage her from attempting to flee]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [the defendant was properly sentenced under § 654 on both arson and criminal threats convictions]; People v. Phan (1993) 14 Cal.App.4th 1453, 1466 [robbery of mother and threat to cut off her young son's hand if she did not give more money were separate and divisible acts that could be punished separately under § 654].)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
DUARTE, J.