Opinion
A125085 No. 205237
09-29-2010
THE PEOPLE, Plaintiff and Respondent, v. CORNELL JAMES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Jenkins, J.
This is an appeal from final judgment following the conviction of defendant Cornell James for misdemeanor elder abuse (Pen. Code, § 368, subd. (b)). We affirm.
Unless otherwise noted, all statutory citations herein are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2008, an information was filed alleging that defendant committed felony elder abuse between June 1, 2007 and December 25, 2007 (§ 368, subd. (b)(1)) (count one), and made criminal threats on or about December 20 and 25, 2007 (§ 422) (counts two through four).
Trial began March 30, 2009. The evidence presented therein related to defendants alleged abuse of John James, a man in his mid-seventies with whom defendant had lived on and off at Johns residence from about 1976 or 1977, when defendant was 16 or 17 years old, until the time of his arrest in 2007. While it is unclear whether John and defendant are actually related, it is undisputed that John has known defendant since he was a child and often introduced him to others as his nephew.
Intending no disrespect, we refer to John James in this opinion as "John."
I. The Prosecutions Case.
John testified that he reluctantly permitted defendant to move into his residence in 2006 for a few months to "just get him on his feet" at the request of Johns daughter, Silvia. Previously, sometime after 1987, John had permitted defendant to live with him, but then asked defendant to move out when he became rowdy. At that time, defendant agreed to move. However, after moving back into Johns house in 2006, he stayed well beyond a few months and then refused to leave when John asked him to.
During defendants stay at Johns house in 2006 and 2007, John lived upstairs while defendant stayed in a downstairs bedroom, where he installed a lock on the door without Johns permission. John and defendant would interact when defendant came upstairs to take a bath or to use the kitchen. During these times, defendant often behaved in a controlling and threatening manner, particularly when he was drunk (which he often was). For example, once, when John was in bed, defendant entered his room and said, "Hey you old man, get up." When John obeyed, defendant shoved him down on the bed. While John was not hurt, he threatened to, but did not, call the police.
After this shoving incident, defendant would tell John about three times per week that he was going to get rid of him and put him in a trunk. There was a trunk in the garage, and John believed defendant intended to kill him and put him there. John began to lock his bedroom door, something he had not previously done. Sometimes, defendant would hold a pipe when he threatened John. Defendant kept this pipe in the living room.
Other times, defendant would tell John he was going to kill him and throw him down the stairs or out the window. Defendant also told John several times that he planned to take possession of Johns house.
In May 2007, John asked defendant to move out of his house, but defendant repeatedly refused, telling John, "You cant put me out.... Im gonna stay here as long as I want and Im gonna get the house." John sought a restraining order in court, but his request was denied and the judge told him the proper recourse was to seek an eviction order.
In July 2007, John received a document notifying him that defendant was suing to get control of a house John owned in Louisiana (the second such lawsuit involving his Louisiana house). The lawsuit was unsuccessful, and defendant and his brother later threatened to burn the house down.
In 1987, defendant unsuccessfully sued John in Louisiana for $100,000 over a house John had inherited from his mother in that state.
During this time, John was treated for a variety of health problems, including anxiety, hypertension, cancer, a heart attack or slight stroke, and a gall bladder infection, which required surgery and a 16-day hospital stay. John began to stay several nights per week in Palo Alto at the home of Dorothy, his ex-wife, to facilitate his medical treatment. Staying with Dorothy in Palo Alto also served to lessen Johns mounting anxiety, which was at least partially related to his deteriorating relationship with defendant, who remained in Johns house despite repeated requests that he move out.
John continued to see defendant during this time period when he visited or stayed overnight at his house, which often occurred during weekends. Defendant would hold the pipe in a threatening manner, laugh at him or sometimes make verbal threats such as, "You old man, Im going to get you out," or "This pipe here gonna put you in that box." In response, John would usually just leave. While John acknowledged defendant could have been "clowning around" or "showing off" for the neighbors, these confrontations made him very anxious. John believed defendant was trying to scare him, and that defendant could hurt him. John also believed defendant was trying to incite him to "do something to him so he can tear me up" by saying, sometime in October 2007, that both he and his attorney would get money from John, and suggesting that Johns attorney was incompetent. He believed defendants threatening behavior caused his hypertension. Dorothy agreed, testifying that John had anxiety attacks every time he visited his home during the time he was staying with her.
Also in October 2007, John suffered a stroke after visiting his house. While defendant was not there at the time, John was upset after finding a woman he did not know in his house. In the past, defendant had moved women, sometimes with children, into Johns house without permission.
Tension escalated in late December 2007. The first of three incidents occurred on December 20, when John went with Dorothy to his house to collect the mail. When John entered through the garage door, defendant appeared in the doorway holding a pipe. Defendant then began "talking bad," saying things like, "Im gonna get your house. Im gonna keep your butt out of here. Im gonna get your ass." As John and Dorothy started to leave, defendant stood in front of the house inside the gate. While John described defendant as "acting the fool, as usual," he also said defendant was very angry and threatening to kill him, and that he was scared defendant would hit him.
A few days later, on December 24, Silvias 33 year-old son, Andrew, accompanied John to his house after John became concerned about a broken water heater about which defendant had complained. A woman came out of defendants bedroom and told John he needed to do certain home repairs. A short time later, defendant came home very angry, accusing John and Andrew of threatening his family. John became very agitated and began to shake. Defendant went inside while John and Andrew remained in the driveway, and then returned, again accusing the two men of threatening his family and saying, "Im calling the posse." This comment scared Andrew, who was increasingly concerned about Johns well-being. Andrew thus twice called 911 before taking John to the local police station to file a report and then returning to Dorothys house in Palo Alto.
The next day, Christmas, Andrew returned to Johns house with John at about noon. Andrews mother, Silvia, and sister, Shanda, joined them in a separate car. Andrew, Shanda and John entered the house to find a just-prepared holiday feast. Defendant came running upstairs, warning them not to touch his food. Andrew, who was filming the incident, tried to calm defendant, but defendant continued to yell threats, including that he was going to call "my posse." Defendant then made a call, telling the person who answered, "Hey Massa... get the posse down here." At that point, John appeared extremely nervous. Andrew told Shanda to go downstairs to tell Silvia to call the police. The police arrived about five minutes later and arrested defendant.
II. The Case Proceeds to the Jury on Misdemeanor Elder Abuse Only.
After the prosecution presented its case in chief, the trial court ruled that the evidence was insufficient to prove felony elder abuse (count one), and that the case should proceed to the jury on the lesser included offense of misdemeanor elder abuse. The information was thus amended accordingly before the defense began its presentation of evidence.
III. The Defense Case.
In addition to two witnesses who testified to his honesty and/or high character, defendant presented testimony from a San Francisco housing inspector who confirmed having responded to a complaint regarding lack of heat and water service at Johns house. After inspecting the house, the inspector issued a notice of housing code violations to John, which remained unabated as of December 24, 2007.
IV. The Jurys Verdict and Sentencing.
On April 13, 2009, the jury convicted defendant of the amended misdemeanor elder abuse count and acquitted him of all counts of making criminal threats. On April 24, 2009, the trial court suspended imposition of a sentence and placed defendant on probation for three years. The trial court also ordered defendant to stay away from John and Johns residence, and imposed various fines and assessments against him. This appeal followed.
DISCUSSION
On appeal, defendant raises two arguments. First, defendant claims the trial court prejudicially erred in admitting Johns testimony (1) that he was frightened by a stick with nails protruding from it that he saw in the kitchen behind the stove, (2) that defendant sought to provoke him so he could "tear him up," and (3) that one of defendants female companions was a welfare recipient. Second, defendant claims the trial courts imposition of a $30 criminal conviction assessment violated state and federal prohibitions against ex post facto laws. We address each claim in turn.
In his opening brief, appellant included a third argument that the misdemeanor elder abuse offense was barred by the statute of limitations. However, defendant withdrew this argument in his reply brief. As such, we need not address it further.
I. Admission of Evidence.
Generally, all relevant evidence is admissible. (People v. Champion (1995) 9 Cal.4th 879, 922.) Relevant evidence is that which has any tendency in reason to prove or disprove any disputed fact material to the outcome of the case. (Evid. Code, § 210.) "The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.] [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.] [Citation.]" (People v. Hamilton (2009) 45 Cal.4th 863, 940.)
Under this deferential standard, a trial courts decision to admit or exclude evidence is reviewed solely for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Avitia (2005) 127 Cal.App.4th 185, 193.) "The trial courts ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage ofjustice. [Citation.]" (People v. Avitia, supra, 127 Cal.App.4th at p. 193.)
As set forth above, defendant challenges the trial courts admission of three portions of Johns testimony on grounds that such testimony was irrelevant and inflammatory. First, defendant challenges Johns testimony that he found behind the kitchen stove in his house "a great big stick that long, and it got 16 nails coming all through of it." Defense counsel objected and moved to strike this testimony, but the trial court refused, reasoning that "[the testimony] goes to this particular persons mental state.
The jury understands that this witness has not seen that stick in the defendants hands."
When defense counsel objected to this testimony, the trial court called on the prosecutor to lay a proper foundation. In response to the questioning that followed, John acknowledged never having seen defendant with the stick or hearing him mention it, but explained: "I think [the stick] was for me when I come up, you know, the stairs and stuff" because "if I walk in the kitchen..., he be by the stove, he can reach behind there and hit me with it if I turn my head, you know."
Second, defendant challenges Johns testimony that defendant sought to provoke him with disparaging remarks about his attorney because "[h]e want me to do something to him so he can tear me up." Defense counsel moved to strike this statement as speculative. The trial court overruled this objection, reasoning that the "jury will understand this is a report of this persons mental state at the time." The prosecutor thereafter asked John to explain what he meant by "tear you up," to which John responded: "Hurt me. Do something to me."
Specifically, John testified that defendant told him his attorney "is no good," that "hes going to get $30,000 and the lawyer going to get $15,000," and that he could do a better job than Johns attorney.
Finally, defendant challenges Johns testimony that one of defendants female companions "was on welfare." Specifically, when asked whether he had given defendant permission to bring women or children to live in his home, John responded: "No, just him rented.... And he brought three kids and another lady. So thats-thats six-six people. And where they sleep at, I dont know. But they was there. He brought them in. I dont know whether he renting them or not, but it was on welfare. The women was on welfare." Defense counsel objected to this statement as "speculation" and moved to strike, but the trial court refused, reasoning that the "jury understands this is the impression of this witness." Defense counsel then asked, "It is not offered for the truth, Your Honor?" The trial court replied, "I dont think so."
Having examined each of the challenged portions of Johns testimony in the context of the record as a whole, we conclude the trial courts decision to admit such testimony was neither arbitrary, capricious, or patently absurd. (People v. Avitia, supra, 127 Cal.App.4th at p. 193.)
Under the Penal Code, a person commits elder abuse if, among other things, he or she "willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable... mental suffering...." (§ 368, subd. (b).) As such, the mental state of an elder abuse victim is generally relevant. (Ibid.)
Here, there was evidence that John, as a general matter, lived in a state of anxiety or fear due to the intimidating and unwanted presence of defendant in his house. There was also evidence that defendant repeatedly used an instrument somewhat similar to the stick, a metal pipe, to threaten or intimidate John, and that defendant was the only person who rented a room in Johns house. Thus, even if John did not see defendant with the stick or hear him mention it, a reasonable juror could nonetheless conclude that John reasonably believed defendant placed the stick in his kitchen in order to inflict on him unjustifiable mental suffering. (See People v. Hamilton, supra, 45 Cal.4th at pp. 940-941.)
Moreover, the jury was advised to consider the testimony with respect to the stick only for the limited purpose of assessing Johns mental state, and was thereafter reminded just before retiring to deliberate that evidence admitted for a limited purpose could not be considered for any other purpose. While defendant insists on appeal this instruction was "utterly unhelpful and even harmful because it advised the jury that they should consider Johns irrelevant and speculative opinions as proof of Johns mental suffering," defendant failed to challenge this instruction below, or to seek modification or clarification of it.
Specifically, the trial court instructed the jury to find defendant guilty of elder abuse only if he "willfully inflicted unjustifiable physical pain or mental suffering on John James." The trial court also explained that an act causes harm only if "the harm is the direct, natural, and probable consequent of the act" and "[t]he harm would not have happened without the act." Further, the trial court reminded the jury that "certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other."
Accordingly, John has waived the right to do so here. (People v. Marks (2003) 31 Cal.4th 197, 228.)
In any event, as the trial court noted, "[t]he jury understands that this witness has not seen that stick in the defendants hands." The defense had ample opportunity to cross-examine John regarding weaknesses or inconsistencies in his testimony. Ultimately, however, it is the role of the jury, not this court, to determine the testimonys probative value.
Finally, even assuming for the sake of argument that admission of the testimony regarding the stick was erroneous, under the totality of the circumstances described above (including the trial courts limiting instruction and the jurys awareness that defendant was not seen with the stick), it simply is not reasonably probable defendant would have obtained a more favorable result had the testimony been excluded. As such, this evidentiary challenge provides no basis for reversal. (People v. Hamilton, supra, 45 Cal.4th at pp. 940-941; People v. Avitia, supra, 127 Cal.App.4th at p. 193.)
We reach a similar conclusion with respect to Johns testimony that defendant sought to provoke him by making derogatory statements about his attorney because "[h]e want me to do something to him so he can tear me up." Again, as the trial court noted, this evidence reflects Johns state of mind following several months of intimidating and abusive conduct by defendant, and thus is relevant to the charged offense of elder abuse. (§ 368, subd. (b) [requiring the defendant to have "willfully cause[d] or permit[ted] any elder or dependent adult to suffer, or inflict[ed] thereon unjustifiable... mental suffering"].) Moreover, as before, the jury was properly instructed with regard to the limited purpose for which this testimony was admitted, and defense counsel had ample opportunity to use cross-examination to highlight the testimonys weaknesses or inconsistencies. As such, we again find no error or undue harm based upon the trial courts decision to admit it. (People v. Hamilton, supra, 45 Cal.4th at pp. 940-941; People v. Avitia, supra, 127 Cal.App.4th at p. 193.)
Finally, with respect to Johns comment that defendants female companion was "on welfare," even assuming again for the sake of argument that its admission was erroneous, we are at a loss as to how such a brief and insignificant comment could have affected the outcome of this case. First, as defendant must concede, the trial court stated on the record that this comment reflected only "the impression of this witness," and not its underlying truth. More importantly, defendant has failed to identify any way in which the outcome was affected by the comment. As such, defendant has failed in his burden to prove a reasonable probability that the outcome of trial would have been more favorable to him had this evidence been excluded. (People v. Coleman (1988) 46 Cal.3d 749, 777; People v. Carter (2005) 36 Cal.4th 1114, 1152; Evid. Code, § 353; Cal. Cost., art. VI, § 13.)
Accordingly, for the reasons stated above, we conclude the trial court did not err in admitting any portion of the challenged testimony.
II. Imposition of a $30 Criminal Conviction Assessment.
Finally, defendant contends the trial courts imposition of a $30 criminal conviction assessment pursuant to Government Code section 70373, subdivision (a), violated the state and federal prohibitions against ex post facto penalties. We disagree for the reasons that follow.
Government Code section 70373, subdivision (a), provides:
"(a)(1) To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.
" (2) For the purposes of this section, conviction includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, as authorized by Sections 41501and 42005 of the Vehicle Code. This assessment shall be deposited in accordance with subdivision (d), and may not be included with the fee calculated and distributed pursuant to Section 42007 of the Vehicle Code."
An ex post facto law is "a retrospective statute that increases a punishment beyond that applicable at the time the crime was committed." (People v. High (2004) 119 Cal.App.4th 1192, 1195.) Under California Constitution article 1, section 9, ex post facto laws "may not be passed." The United States Constitution article 1, section 10, clause 1 contains a similar prohibition, and is analyzed the same way as the California provision. (Stogner v. California (2003) 539 U.S. 607, 610 [the United States Constitutions ex post facto clause prohibits the federal government and the states "from enacting statutes with manifestly unjust and oppressive retroactive effects"]; People v. High, supra, 119 Cal.App.4th at pp. 1195-1196; People v. Castellanos (1999) 21 Cal.4th 785, 790.) Under both constitutional provisions," [e]ach time a statute has been challenged as being in conflict with the constitutional prohibitions against... ex post facto laws, it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties (Trop v. Dulles (1958) 356 U.S. 86, 95-96, fns. omitted.)" (People v. High, supra, 119 Cal.App.4th at pp. 1195-1196; see also People v. Acuna (2000) 77 Cal.App.4th 1056, 1059 ["[t]he ex post facto clause does not prohibit all increased burdens; it only prohibits more burdensome punishment"].)
Relevant here, Government Code section 70373 became effective January 1, 2009, a date occurring after defendant committed the offense at issue in this case. "It was part of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised. (See, e.g., §§ 70611 [unlimited civil filing fees], 70613, subd. (a) [limited civil filing fees], 70621 [fees for an appeal or petition for a writ in limited civil cases], 70654 [petitions for appointment of a guardian]; see also Legis. Counsels Dig., Sen. Bill No. 1407 (2007-2008 Reg. Sess.) pp. 24-26, 28, 32-33.)" (People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1490 (People v. Fleury).) Thus, under the principles governing ex post facto laws set forth above, we must determine whether Government Code section 70373 is penal in nature by first " ascertaining] whether the legislature meant the statute to establish "civil" proceedings. [Citation.] If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "so punitive either in purpose or effect as to negate [the States] intention" to deem it "civil." [Citation.] Because we ordinarily defer to the legislatures stated intent, [citation], "only the clearest proof " will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, [citations]." (Smith et al. v. Doe et al. (2003) 538 U.S. 84, 92; see also People v. Castellanos, supra, 21 Cal.4th at p. 790.)
A number of recent Court of Appeal decisions have applied these principles to assessments imposed pursuant to Government Code section 70373. In doing so, these courts have concluded that imposition of such assessments for crimes committed before the statutes enactment does not violate state or federal prohibitions against ex post facto statutes. (See People v. Fleury, supra, 182 Cal.App.4th at pp. 1489-1494; People v. Castillo (2010) 182 Cal.App.4th 1410, 1414, review denied People v. Castillo (2010) 2010 Cal. LEXIS 5107; People v. Phillips (2010) 186 Cal.App.4th 475, 478-479 [where defendant was found guilty of drug possession, the trial court properly imposed a $30 assessment under Government Code section 70373, even though the crime occurred before the statutes effective date]; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1112 [where defendant found guilty of second degree robbery, the trial court properly imposed an assessment under Government Code section 70373, even though the crime occurred before the statutes effective date]; cf. People v. Davis (2010) 185 Cal.App.4th 998, 1000.)
For example, applying the aforementioned principles in People v. Fleury, the appellate court first determined that the assessment under Government Code section 70373, subdivision (a), was not intended by the legislature to be a punitive measure because, among other things: (1) it was adopted as a means to ensure and maintain adequate funding for court facilities; (2) it was labeled an "assessment" rather than a "fine"; (3) it is imposed not just on those persons convicted of crimes, but also when a traffic violation charge is dismissed because the alleged violator attends traffic school and when bail is posted; and (4) the amount of the assessment is not dependent on the seriousness of the offense. (People v. Fleury, supra, 182 Cal.App.4th at pp. 1491-1492. See also People v. Castillo, supra, 182 Cal.App.4th at p. 1414.)
The People v. Fleury court then determined that the assessment under Government Code section 70373, subdivision (a), is not "so punitive as to override the Legislatures
[nonpunitive] intent." (182 Cal.App.4th at p. 1493.) In making this determination, the appellate court found the following factors relevant: (1) the purpose of the assessment is not to punish, but rather to ensure and maintain adequate funding for court facilities; (2) the statute was enacted as part of a broader legislative scheme in which filing fees were also raised in non-criminal cases; (3) the assessment is a relatively small amount of money and imposes no physical restraint; (4) the assessment does not promote the traditional aims of punishment, nor is its amount dependent on the seriousness of the offense; and (5) the assessment has a rational relationship to nonpunitive goals-to wit, to insure appropriate funding levels for the planning, design, construction, rehabilitation, renovation, replacement or acquisition of court facilities. (Id. at pp. 1493-1494.)
Both People v. Fleury and People v. Castillo recognized that the language of Government Code section 70373 is similar to that of Penal Code section 1465.8, a court security fee law, which the California Supreme Court held did not violate the ex post facto rule in People v. Alford (2007) 42 Cal.4th 749 at p. 754. (People v. Fleury, supra, 182 Cal.App.4th at pp. 1490-1493; People v. Castillo, supra, 182 Cal.App.4th at p. 1414.)
We, like other appellate courts, agree with the decision and reasoning in People v. Fleury, supra, 182 Cal.App.4th 1486. (E.g., People v. Castillo, supra, 182 Cal.App.4th at p. 1414; People v. Phillips, supra, 186 Cal.App.4th at pp. 478-479; People v. Knightbent, supra, 186 Cal.App.4th at p. 1112.) Accordingly, we conclude the trial court in this case did not offend the prohibitions against ex post facto laws by imposing upon defendant a $30 assessment under Government Code section 70373, subdivision (a), even though his crime occurred before the statutes effective date.
DISPOSITION
The judgment is affirmed.
Jenkins, J.
We concur:
McGuiness, P. J.
Siggins, J.