Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF103177A.
SIMS, J.
After the trial court declared a mistrial based on the inability of defendant Wayde Hollis Harris to cooperate with and assist his appointed attorney, defendant was retried on the same charges. On retrial, the jury convicted defendant of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a) – count 1), assault with a firearm (§ 245, subd. (a)(2) – count 2), two counts of criminal threat (§ 422 – counts 3 & 7), false imprisonment by violence (§ 236 – count 4), possession of a firearm after prior felony conviction (§ 12021, subd. (a)(1) – count 5), possession of a firearm after conviction for inflicting corporal injury on a cohabitant (§§ 12021, subd. (c)(1), 273.5 – count 6), and failure to appear on a felony charge after release on bail (§ 1320.5 – count 8). The trial court found true the allegation that defendant had served a prior prison term and had not remained free from custody for five years. (667.5, subd. (b).)
Undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to 22 years and eight months in prison. Three days after sentencing, defendant filed a notice of appeal.
On appeal, defendant contends (1) he was retried in violation of his right to remain free from double jeopardy, (2) insufficient evidence supported his conviction of criminal threat against his mother, (3) the trial court erred in admitting evidence of five instances of prior uncharged domestic violence, (4) his right to a Marsden hearing was wrongly denied at sentencing, and (5) the trial court erred in failing to apply section 654 to his convictions for assault with a firearm, criminal threat, and false imprisonment against the same victim.
People v. Marsden (1970) 2 Cal.3d 118.
We shall modify defendant’s prison term to stay the sentence for criminal threat pursuant to section 654 (count 3). In all other respects we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Criminal Threat Against Lois Harris
On the morning of March 21, 2006, defendant went to visit his mother, Lois Harris. At the time, Lois and her husband were the legal guardians of defendant’s children, 12-year-old Gavin and 17-year-old Megan. Defendant wanted to talk about Lois and her husband relinquishing the guardianships. Lois replied that defendant needed to “get his life straightened out first.” They continued to talk, and defendant angrily criticized how Lois was raising the children. Defendant called his mother a “fucking bitch” and said that he hoped she would burn in hell.
For the sake of clarity, we refer to defendant’s mother (who has the same surname as defendant) by her first name. No disrespect is intended.
Defendant pushed Lois off the stool on which she was sitting. He also head-butted Lois several times. They continued to talk, with defendant occasionally screaming at and pushing his mother.
Before defendant left Lois’s house, he threatened to kill her. Defendant told his mother that he was going to “iron [her] skin with a hot iron and [she] would die a slow and painful death and [she] would regret [she] was ever alive.” Defendant said he would kill her when she least expected it.
Lois believed defendant’s death threat and was frightened. However, Lois did not accept defendant’s invitation to call the police because she “didn’t want to make it worse” and she did not want to have to testify against her son.
Although defendant would come to visit his son 12 to 14 times after March 21, 2006, Lois and her husband never again let defendant inside their house. In early April 2006, Gavin celebrated his birthday on the porch because Lois and her husband would not let defendant inside. Lois never went outside when defendant came to visit Gavin.
On April 11, 2006, Lois called the police to report defendant’s March 21 threat. Lois called the police when Gavin appeared to be very upset after receiving a telephone call from defendant. Gavin was “visibly shaking. And he was white as a sheet, white as a ghost, and crying.” Lois called the police “[b]ecause [she] couldn’t stand to watch it anymore.”
Assault of Leah Andrews and Criminal Threat to Leah Andrews
Defendant and Leah Andrews had a child together, a boy who was about 15 months old on January 12, 2007. On that date, Andrews dropped off her son at the house of her cousin, who had agreed to babysit. Andrews drove to defendant’s trailer, which was located in an orchard near Stockton.
Andrews entered the trailer through an open door and roused defendant to ask about a recent arrest of someone who had been staying nearby. Defendant was angry at having been awakened. He asked Andrews where their son was, and Andrews answered that the boy was with a friend, Gigi. Inexplicably, this answer made defendant even angrier, and he began hitting Andrew’s head.
Defendant punched Andrews in the head and arms 40 to 50 times. He also hit her in the knees at least 30 times. Andrews attempted to shield herself with her arms and implored defendant to stop because of the pain to her left knee. The day before the assault, Andrews had undergone a medical procedure on that knee, which required eight or nine stitches to close a wound that was several inches long. Defendant asked which knee had been operated on, and he hit that knee more often than the other.
While beating her, defendant mocked Andrews and mimicked her cries of distress. One of defendant’s blows hit Andrews’s eye, which immediately began to swell.
When Andrews pushed back at defendant, he reached through a nearby bathroom door and grabbed a gun. Defendant put the gun to Andrews’s head and said that their son would be better off without her. Defendant repeatedly threatened to shoot Andrews in the kneecap and to kill her. Andrews believed he was going to kill her.
Defendant then offered her the gun, saying: “Take the gun because look at you now, it will just be self-defense if you killed me. You’ll get off.” Several more times, defendant asked Andrews to kill him while trying to make her take the gun. Andrews refused to take the gun, telling defendant that she just wanted to go home.
Defendant had Andrews lie across the foot of his bed. He then lay down so that his legs rested across her knees and thighs. Andrews told defendant to get off of her because he was hurting her. Defendant refused to move. After a few minutes, defendant turned to the side and told Andrews: “Go ahead go. Go call the cops.” Andrews left immediately.
The assault lasted about 45 minutes. Andrews sustained bruises all over her arms and thighs. The blows to her head rendered Andrews dizzy. Even so, Andrews did not call the police because she was afraid that reporting the assault would cause defendant to inflict further violence on her.
Andrews drove to the house of her friend, Billy Schaeffer. She showed her injuries to Schaeffer and explained what had happened to her. After talking to Schaeffer for 10 minutes, Andrews drove back to her cousin’s house. Andrews showed her cousin the injuries, including the knee wound that had been reopened. Only the two stitches on the ends of the wound remained intact. Andrews’s cousin urged her to go to the hospital, but Andrews refused to go until the next morning.
At the emergency room of St. Joseph’s hospital on January 13, 2009, the medical personnel told Andrews that they could not repair the stitches to her knee because the injury had occurred too many hours earlier. However, a doctor ordered a CAT scan of Andrews’s brain to determine if her injuries had resulted in internal swelling. Andrews told a nurse that she had been punched in the face and head with fists. Andrews also reported that the stitches in her knee broke as a result of defendant’s hitting her.
Andrews left the emergency room before the CAT scan could be performed. Nonetheless, the nurse informed the police of the assault.
That evening, San Joaquin County Sheriff’s deputies contacted Andrews and offered to obtain an emergency protective order against defendant. Andrews accepted the offer.
Uncharged Acts of Domestic Violence
At trial, the court admitted evidence of five instances of uncharged domestic violence committed by defendant.
November 2005 Incident Against Leah Andrews
By November 16, 2005, Andrews and defendant had been dating sporadically for about a year. That evening, defendant saw Andrews riding in a car with her friends. Defendant quickly turned his own car around, accelerated, and rammed the car in which Andrews and her friends were riding. Defendant had his 11-year old son with him in the car. Defendant screamed for Andrews to get into his car, and she acquiesced.
July 2006 Incident Against Leah Andrews
In July 2006, Andrews and her daughter (not defendant’s child) arrived at their home to find defendant waiting beside the front door. Defendant was acting “crazy” and tried to grab Andrews’s car keys from the ignition of her car. Defendant followed Andrews inside and started screaming at her. Defendant grabbed Andrews’s hair and made her lie down on the bed. Andrews’s daughter told defendant, “Don’t do that to my mommy.” Andrews was about seven months pregnant at the time. Andrews’s daughter ran next door to call the police.
After the incident Andrews secured a restraining order against defendant. However, Andrews subsequently had the restraining order lifted and continued to date defendant.
July 1997 Incident Against Suzanne Salzenstein
On July 28, 1997, retired Stockton Police Department Officer James Robinson witnessed what he thought was a robbery in progress. Robinson saw defendant trying to grab a backpack from Suzanne Salzenstein near a bank ATM. Defendant twisted Salzenstein’s arm, slapped her chest, and grabbed the backpack. When Salzenstein tried to grab the backpack back, defendant hit her several times and shoved her. As Robinson listened to the argument, he realized it was a “domestic squabble.”
Robinson stepped between defendant and Salzenstein to break up the scuffle, telling them repeatedly to calm down. Neither defendant nor Salzenstein calmed down. Suddenly, a man in a pickup truck pulled up and ran toward defendant while carrying a baseball bat. The man with the bat instructed, “Give it back to her.” Robinson stepped between the man with the bat and defendant to try to keep a fight from erupting.
Defendant screamed that Salzenstein had stolen all his money. Defendant then turned toward Robinson, fists clenched, as if about to attack. Robinson told defendant, “that’s not a good idea.”
Defendant retreated, got into a nearby car, and started to drive away. Salzenstein reached into the car to retrieve the backpack and was dragged along as defendant began to drive away. Robinson pulled her from the car, and defendant sped off.
October 2002 Incident Against Cassie Cunningham
Cassie Cunningham married defendant in 1998 and separated from him on October 2, 2002. After they separated, Cunningham went to live with her parents. Sometime during October 2002, defendant went to the home of Cunningham’s parents and stole her cell phone. When Cunningham realized defendant took the phone, she drove to defendant’s trailer to get it back. At the trailer, they got into an argument.
Defendant took the keys to her car, smashed her cell phone, and pushed Cunningham to the ground. Cunningham got up and ran. Defendant pursued her, caught her arm, and shoved her into the neighbor’s garage door. Defendant warned her not to call the police or alert the neighbors.
December 2002 Incident Against Cassie Cunningham
On December 6, 2002, Cunningham went to defendant’s trailer to drop off Christmas presents for defendant’s children and to retrieve a power drill he had borrowed from her. When defendant saw her arrive, he ran at her with a furious look. Defendant taunted her with photos of women with whom he claimed to be having sexual relations. He also told her to “stick the power drill up [her] ass.” Defendant restrained Cunningham and threatened that she would “probably end up on a milk carton.” Cunningham was frightened. When Cunningham was allowed to leave, she drove straight to an attorney’s office to obtain a restraining order against defendant.
Defense
Defendant presented an alibi defense at trial. Defendant’s friends, Suzanne Gall and her husband, Prescott Snyder, testified that defendant had been with them all day on January 12, 2006 (the date of the charged assault against Andrews).
On cross-examination, Gall acknowledged that she first came forward with the alibi after she had visited defendant several times in jail. Snyder also admitted he had not told anyone of defendant’s alibi until Snyder testified at defendant’s first trial.
DISCUSSION
I
Double Jeopardy
Defendant contends the constitutional prohibition on double jeopardy barred his retrial after a jury was empanelled in the first trial. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) Defendant argues that we must consider his claim on the merits though he failed to plead former jeopardy at the outset of the retrial. He asserts that he received constitutionally deficient representation to the extent that defense counsel failed to tender a meritorious former jeopardy claim. We disagree.
A
The day before arguments to the jury were scheduled to commence in the first trial, defendant requested a Marsden hearing on grounds that he was unable to work with and lacked confidence in his trial attorney. At the beginning of the Marsden hearing, defendant posed a question to the court that indicated his awareness that a substitution of counsel would result in a mistrial.
“THE COURT:... I understand that some issues may have arisen between you and your counsel. [¶] Are you requesting to have another attorney appointed for you?
“THE DEFENDANT: That would start everything all over, right?
“THE COURT: It wouldn’t start everything all over, but it would start the trial over. I would have to declare a mistrial, bring in another attorney for you.”
Later during the hearing, the trial court again informed defendant that a substitution of counsel would require a declaration of mistrial:
“THE COURT: And, you know, we are at a...
“[¶]... [¶]
“... obviously [sic] at a critical juncture in the case because it goes to the jury tomorrow to decide. So we are at that point that if you’re saying, ‘I think there’s a breakdown in the relationship with... my attorney, that we cannot continue this way, I – I am not comfortable with his experience or competency or diligence or effectiveness, ’ or however you want to put that, then that’s something that I will rule on.
“The only thing that you do need to understand if you’re making that request, is that it means a mistrial in this case, a new attorney for you on all cases, and beginning the trial process again in a
“THE DEFENDANT: That’s why
“THE COURT: -- hopefully a reasonable time. I could call and – make sure we get an attorney that can be up to speed as soon as possible, but I can’t give you any guarantees on that.” (Italics added.)
At the conclusion of the hearing, the court explained yet again that a substitution of counsel would result in a mistrial. Defendant indicated his consent to the granting of a mistrial during the following colloquy:
“THE COURT: All right. And, Mr. Harris, I understand that this is an unusual case in that it involves not just your custody life, but it involves your child. So the consequences to you are – are huge.
“Do you want Mr. Mueller-Dombois to continue as your attorney?
“THE DEFENDANT: (Shakes head negatively.)
“THE COURT: Do you understand in your negative head shake, that that means I would appoint a new attorney for you and declare a mistrial in this trial?
“THE DEFENDANT: (Nods head affirmatively.) Yeah.
“THE COURT: And knowing that, that’s what you want me to do?
“THE DEFENDANT: I just don’t see – yes.”
The retrial commenced without defendant entering a special plea of once in jeopardy or otherwise objecting on double jeopardy grounds. (See § 1016, subd. (5) [allowing criminal defendants to enter plea of once in jeopardy].) Instead, defendant entered a plea of not guilty and raised the former jeopardy claim for the first time after being convicted.
B
The Attorney General argues that defendant forfeited his double jeopardy claim for failure to assert it prior to retrial. We agree.
In People v. Marshall (1996) 13 Cal.4th 799, at page 825, footnote 1, the California Supreme Court held that a double jeopardy claim had been forfeited for failure to raise the issue in the trial court first. Nonetheless, the high court considered the merits of the claim because if the “plea of former jeopardy had merit and trial counsel's failure to raise the plea resulted in the withdrawal of a crucial defense, then defendant would have been denied the effective assistance of counsel to which he was entitled. (People v. Belcher (1974) 11 Cal.3d 91, 96 (Belcher) [acknowledging general rule of waiver, but addressing double jeopardy argument on direct appeal and concluding trial counsel's failure to timely raise plea of former jeopardy constituted a denial of effective assistance of counsel]; see Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].) Consequently, although the Attorney General is technically correct in arguing the issue was [forfeited], ... we nevertheless must determine whether such a plea would have had merit.” (Ibid.)
As in People v. Marshall, we are constrained to consider whether defendant’s double jeopardy claim has merit – even if only to determine whether he received constitutionally adequate representation.
C
The Double Jeopardy Clause of Fifth Amendment and Article I, section 15 of the California Constitution safeguard criminal defendants from multiple prosecutions for the same charges. (Oregon v. Kennedy (1982) 456 U.S. 667, 671-672 [72 L.Ed.2d 416]; People v. Marshall, supra, 13 Cal.4th at p. 824.) As the United States Supreme Court has explained, “Where the trial is terminated over the objection of the defendant, the classical test for lifting the double jeopardy bar to a second trial is the ‘manifest necessity’ standard.... The ‘manifest necessity’ standard provides sufficient protection to the defendant’s interests in having his case finally decided by the jury first selected while at the same time maintaining ‘the public's interest in fair trials designed to end in just judgments.’ Wade v. Hunter [(1949)]336 U.S. [684, ] 689.
“But in the case of a mistrial declared at the behest of the defendant, quite different principles come into play. Here the defendant himself has elected to terminate the proceedings against him, and the ‘manifest necessity’ standard has no place in the application of the Double Jeopardy Clause. United States v. Dinitz [(1949)] 424 U.S. [600, ] 607-610. Indeed, in United States v. Tateo, 377 U.S. 463, 467, 12 L.Ed.2d 448 (1964), the Court stated: [¶] ‘If Tateo had requested a mistrial on the basis of the judge's comments, there would be no doubt that if he had been successful, the Government would not have been barred from retrying him’ (emphasis in original).” (Oregon v. Kennedy, supra, 456 U.S. at pp. 672-673.)
Here, defendant expressly consented to the trial court’s declaration of mistrial. Indeed, he twice indicated his assent to the substitution of counsel and concomitant mistrial in response to the trial court’s direct questioning.
Defendant’s consent to a mistrial renders irrelevant his argument that there was no manifest necessity for a new trial. A manifest necessity is required to allow for a retrial only after a mistrial has been declared over objection by defendant. (Oregon v. Kennedy, supra, 456 U.S. at pp. 672-673.) Here, defendant’s consent to a declaration of mistrial constituted a waiver of the right against double jeopardy. (People v. Balderas (1985) 41 Cal.3d 144, 181.)
The failure of defendant’s double jeopardy argument also undermines his claim of ineffective assistance of counsel. Although a criminal defendant is constitutionally entitled to the assistance of legal counsel in pursuing all viable defenses (Strickland v. Washington, supra, 466 U.S. at pp. 687-688), he has no right to have an attorney pursue futile arguments. “Counsel's failure to make a meritless objection does not constitute deficient performance.” (People v. Mitcham (1992) 1 Cal.4th 1027, 1080.) A plea of once in jeopardy would have been futile even if it had been timely entered.
Defendant was not denied his constitutional rights to remain free of double jeopardy and to receive the effective assistance of counsel when he was retried after he expressly consented to a declaration of mistrial.
II
Sufficiency of the Evidence (Criminal Threat)
Defendant contends his conviction of criminal threat made to his mother, Lois, (§ 422) must be reversed for insufficient evidence that his mother experienced sustained fear due to his threat to torture her to death with a hot iron. We reject the contention.
A
At trial, Lois testified that she believed defendant when he threatened to kill her:
“Q. Were you frightened?
“A. I figure he’ll kill me. Yeah, I guess you could call it fright. I don’t go around worrying about it a lot, and I didn’t, but I believe it.”
Lois further explained that she took the death threat seriously even though she refused to let it keep her from looking after defendant’s children.
“Q. Now, you didn’t report this incident on March 21st, correct?
“A. I didn’t call the police on March 21st.
“Q. But you figured that he was going to kill you when you least expected it; you took it seriously?
“A. Yeah, I did take it seriously, but I couldn’t allow myself to worry about that and carry it around. I was trying to take care of the kids, and I am taking care of the kids. And I didn’t want to make things worse, and I know that. You probably don’t understand that.
“Q. Did you think he would retaliate against you if you called the police?
“A. I don’t know. I don’t know what I mean by that. But I didn’t want to make it worse. I didn’t want to – I wanted – I had fear for him. I have fear for the kids.”
Lois so feared defendant after the March 21st death threat that she never again allowed defendant into her house. Even though defendant would visit his son more than a dozen times, defendant was always required to stay outside. While defendant visited, Lois stayed inside.
B
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238, ] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319, 61 L.Ed.2d 560.) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576.)” (People v. Young (2005) 34 Cal.4th 1149.)
When the record demonstrates that evidence supports the conviction, we will not disturb the judgment even if the other evidence presented at trial might have supported an acquittal. (People v. Abilez (2007) 41 Cal.4th 472, 504.)
C
Section 422 provides, in pertinent part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished....” (Italics added.)
The “sustained fear” requirement for a conviction of section 422 “has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Neither section 422 nor reported decisions have defined any specific amount of time that a victim must remain in fear in order to satisfy this element. Instead, “sustained fear” has been held to require that the threat cause the victim to endure fear for “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Defendant asserts that Lois did not endure sustained fear because she did not call the police immediately after he issued the threat. Defendant also points out that Lois’s eventual report of the threat to the police was triggered only when she observed her grandchild turn “white as a sheet” after speaking with defendant on the telephone. Neither fact helps defendant.
The sustained fear requirement in section 422 does not require the victim to experience a particular sort of fear that impels immediate report to the police. That a victim may have reason to avoid calling on law enforcement does not preclude a finding of the requisite fear for a conviction of section 422. Here, for example, Lois testified that she did not call the police despite her fear because she “didn’t want to make it worse.”
Defendant claims that this testimony requires us to follow the result in In re Ricky T., supra, 87 Cal.App.4th 1132, where the court reversed a minor's adjudication of violating section 422. In Ricky T., the minor threatened his teacher by stating, “I’m going to kick your ass.” (Id. at pp. 1135-1136.) The teacher “felt threatened” and ordered the minor to report to the school office – which the minor did. (Id. at p. 1135.) The Ricky T. court reversed on the ground that no evidence showed that the teacher “felt fear beyond the time of the angry utterances.” (Id. at p. 1140.) Because the victim did not experience fear “beyond the moments of the encounter, ” section 422 was not violated. (Ibid.)
Here, substantial evidence supported defendant’s conviction for criminal threat against Lois. During the course of a two-hour-long argument, defendant threatened to kill his mother by using a hot iron to cause her a slow and painful death. To add to Lois’s fear, defendant said he would kill her when she least expected it. Lois testified that she believed defendant would kill her and that she was frightened.
Moreover, the evidence shows that Lois experienced fear long after March 21, 2006. Lois remained sufficiently frightened of defendant that she never again let him into her house – even when he behaved civilly during his son’s birthday party on the porch of the house. Although defendant visited his son at least a dozen times after the criminal threat against Lois, she never went outside to talk to him. Lois’s testimony established that she experienced sustained fear as a result of defendant’s threat to torture her to death.
The record shows Lois felt a duty to her grandchildren (defendant’s children) that required her to avoid making defendant even angrier by reporting him to the police. Lois testified: “Yeah, I did take it seriously, but I couldn’t allow myself to worry about that and carry it around. I was trying to take care of the kids, and I am taking care of the kids. And I don’t want to make things worse, and I know that.”
Lois’s ability to function as a caregiver to the children despite her fear is a testament to her fortitude rather than a reason to find that defendant did not violate section 422. Lois’s testimony showed that she still feared defendant at the time of trial. She testified: “I have fear for the kids. I have fear for myself.” Lois’s continued fear for her personal safety and the safety of her grandchildren met the fear element of section 422. (People v. Solis (2001) 90 Cal.App.4th 1002, 1024.)
The evidence sufficed to convict defendant of issuing a criminal threat against his mother on March 21, 2006.
III
Constitutional Validity of Evidence Code section 1109
The Evidence Code provides that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).) As used by Evidence Code section 1109, the term “domestic violence” includes “abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.” (Evid. Code, § 1109, subd. (d)(3), incorporating § 13700, subd. (b).)
Defendant challenges the constitutional validity of section 1109, arguing that admission of propensity evidence in domestic violence cases violates the Due Process Clause of the United States Constitution. Defendant argues that section 1109’s constitutional invalidity renders CALCRIM No. 852 – which instructs the jury on Evidence Code section 1109 – constitutionally invalid. Defendant points to no specific language in CALCRIM No. 852 that he claims to render the instruction constitutionally infirm. Instead, he argues the instruction violates due process simply by allowing the jury to consider domestic violence propensity evidence.
As given in this case, CALCRIM No. 852 instructed: “The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically, November 2005 and July 2006 incidents involving Leah Andrews; October or November 2002 and December 2002 incidents involving Cassandra Cunningham; and a June 1997 incident involving Suzanne Salzenstein.
In People v. Johnson (2000) 77 Cal.App.4th 410, this court held that Evidence Code section 1109 does not violate due process. (Id. at p. 412.) Other courts considering due process challenges to Evidence Code section 1109 have uniformly reached the same conclusion. (E.g., People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030.) We agree with these authorities.
Defendant notes, “the issue has not been decided by the California Supreme Court and has been left open by the United States Supreme Court....” Thus, he explains that he tenders the issue of Evidence Code section 1109’s constitutional validity under the due process clause to preserve the issue for high court review. So be it.
IV
Marsden Motion at the Sentencing Hearing
Defendant contends the trial court erroneously denied his request for a Marsden hearing during the sentencing hearing. We disagree.
A
On the day of sentencing, defendant sought a Marsden hearing. The trial court noted that defendant’s attorney, Mr. Panerio, had not yet had the opportunity to engage in any advocacy on behalf of defendant since the end of trial. Although a new trial motion had been filed on defendant’s behalf, it was prepared by another attorney. The court also explained that while defense counsel had the opportunity represent defendant’s interests on the issue of sentencing, “sentencing in this case is pretty much laid out by the Legislature.”
The trial court declined to hold a Marsden hearing. Nonetheless, defendant continued to pursue the motion, and the following colloquy ensued:
“THE DEFENDANT: Could I please – [Mr. Panerio] came to visit me. And we were gonna talk about the sentencing. Well, when I brought up the fact that he never brought up the charge with my mother
“THE COURT: Uh-huh.
“THE DEFENDANT: -- and he – you remember he said – or prior I said that when that case was brought up, he said, ‘You will be convicted of that, you waited too long to call the police, ’ well, I offered at that time a defense. Well, he didn’t want to hear it. But the investigator knows about it.
“THE COURT:... Mr. Harris, I don’t want to divulge things that were said in a Marsden hearing. But the case involving your mom was discussed in a Marsden hearing. And I don’t want to say what was said in open court. But that is not correct.
“And so here’s the other thing: It doesn’t matter. This is sentencing. The trial is over. The new trial motions are over. It’s time for sentencing.
“THE DEFENDANT: Okay. My point is that when I brought that up and the appeal, he said I have no appeal issue for that.
“THE COURT: You have a right to an appeal, which I’m going to advise you of formally at the end of this sentencing. And you will have a different appellate attorney, probably someone not even from this county, who is going to review the whole record from day one and file any issues on appeal that he or she feel[s] are relevant.
“THE DEFENDANT: And he has a lot to do with how the appeal goes.
“THE COURT: No, he has nothing to do with how the appeal goes.
“THE DEFENDANT: I thought
“THE COURT: You sign it, it goes to a bank of appellate attorneys, and they take it from there. He has nothing to do with it.
“THE DEFENDANT: Well, I just – I don’t want Mr. Panerio in any way to do with any of my dealings at all after his representation and what he did.
“THE COURT: He’s not going to do anything. I’m going to sentence you.”
After defendant reiterated his wish not to have Mr. Panerio represent him, the court informed defendant that he had the option of representing himself. When defendant expressed reluctance about representing himself, the trial court explained its sentencing choices at length. Defendant responded that he did not wish to have Mr. Panerio represent him because defendant believed that his attorney would argue against him.
“THE DEFENDANT: Well, what my concern is is that Mr. Panerio, if there’s any way he could screw me on this, I will – I will – I am very concerned about that and I think there are ways he could.
“THE COURT: I’m not sure how he can, Mr. Harris, because as of right now, the range that I’m looking at is eighteen years eight months or to twenty-two years eight months.
“THE DEFENDANT: Then he can’t screw up my appeal or anything?
“THE COURT: How can he do that?
“THE DEFENDANT: Doesn’t he have to file the papers for the appeal?
“THE COURT: No. We do that. We will give you the paperwork to do that.”
Defendant sought to delay sentencing, but the court refused to continue the matter. Defendant began to talk about a Marsden motion he had brought four days earlier. However, the court noted that it had spent an hour on the prior motion and the time had come for sentencing. Defendant elected to proceed with Mr. Panerio continuing as defense counsel.
The prosecution and Mr. Panerio presented arguments regarding the appropriate sentence for defendant. The trial court imposed a 22 year and eight month sentence before advising defendant of his right to file an appeal. Defense counsel indicated that he would file the notice of appeal for defendant. Notice of appeal was timely filed.
B
A defendant is entitled to effective assistance of legal counsel at all critical stages of a criminal proceeding. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) A criminal defendant has the right to discharge appointed counsel and receive new counsel upon demonstration of constitutionally inadequate representation. (People v. Marsden, supra, 2 Cal.3d 118, 124-125.)
Generally, when a criminal defendant makes a motion to substitute appointed counsel, “‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’” (People v. Fierro (1991) 1 Cal.4th 173, 204, quoting People v. Crandell (1988) 46 Cal.3d 833, 854; see also Marsden, supra, 2 Cal.3d at pp. 124-125.) However, ‘a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.’ (People v. Smith (1993) 6 Cal.4th 684, 696.)” (People v. Leonard (2000) 78 Cal.App.4th 776, 786.)
“A trial court's duty to conduct the inquiry arises ‘only when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel.’” (People v. Leonard, supra, 78 Cal.App.4th at p. 787, quoting People v. Molina (1977) 74 Cal.App.3d 544, 549.)
In this case, the record shows that defendant’s desire to substitute Mr. Panerio did not arise from deficient performance of counsel. Mr. Panerio had not yet had an opportunity to perform; the motion for new trial was prepared by another attorney and the court had not yet allowed discussion of sentencing considerations. Instead, defendant’s concern focused on his wish to preserve his right to appeal the convictions.
Defendant sought substitution of counsel as a prophylactic measure to assuage his fear that Mr. Panerio would “screw [him] on this.” However, mere speculation that an attorney will commit some act of deficient representation in the future does not warrant substitution of appointed counsel. A Marsden motion may be granted only for demonstrated inadequate performance or an irrevocable breakdown in the attorney/client relationship. (People v. Fierro, supra, 1 Cal.4th at p. 204 [defendant must show specific incidents in which counsel provided inadequate representation]; see also generally People v. Molina, supra, 74 Cal.App.3d at p. 549.) The trial court did not err in denying defendant’s request for a Marsden hearing to address his fears of future inadequate legal representation.
The record in this case suggests that defendant’s October 24, 2008, Marsden motion was also motivated by his desire for delay. Over the course of the criminal proceedings, defendant made an unusual number of Marsden motions. Defendant’s Marsden motions were heard on April 3, 2007 (request for substitution abandoned at end of lengthy Marsden hearing), September 18, 2007 (denied), September 24, 2007 (counsel relieved due to breakdown in attorney/client relationship and mistrial declared), October 31, 2007 (denied), November 9, 2007 (denied with court noting defendant was “trying to micromanage [his] defense” by using the trial court’s hearing of Marsden motions), November 14, 2007 (denied), November 16, 2007 (denied), November 28, 2007 (lengthy hearing resulted in denial of motion upon finding “that any deterioration in the [attorney/client] relationship has been occasioned by the defendant’s acts and attitude and there is no reason why in the future the defendant cannot be adequately represented by this attorney”), March 17, 2008 (Marsden hearing took three hours and was denied), May 13, 2008 (denied), July 23, 2008 (denied), September 29, 2008, and on October 20, 2008 (hearing took an hour, resulted in counsel being relieved and Mr. Panerio’s appointment, and ended with defendant’s assertion, “And I will be doing a Marsden motion on Mr. Panerio”).
The trial court’s findings that defendant employed Marsden motions to “micromanage” his defense and to complain about deterioration in his attorney/client relationships for which he was responsible reflected defendant’s willingness to use the motion for purposes other than demonstrating specific instances of deficient representation by defense counsel.
In sum, the record shows that defendant’s October 24, 2008, request for a Marsden hearing preceded any opportunity for his attorney to engage in any advocacy regarding sentencing. Instead, defendant’s request for yet another Marsden hearing focused on the possibility of future inadequate performance and appears to have been made for purposes of delay. The trial court did not err in denying defendant’s request for a Marsden hearing.
V
Penal Code section 654 (Counts 2, 3, and 4)
Defendant contends the trial court erred in sentencing him to consecutive terms for count 2 (assault with a firearm, § 245, subd. (a)(2)), count 3 (criminal threat made to Leah Andrews, § 422), and count 4 (false imprisonment by violence, § 236). Relying on section 654, defendant contends the trial court should have stayed the sentences for these offenses committed against Andrews on January 12, 2007. We agree that defendant’s sentence for criminal threat against Andrews must be stayed. However, we reject his argument as to the other counts.
A
Subdivision (a) of section 654 provides, in pertinent part: “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.”
Section 654 prohibits multiple punishments for a single act or indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this statute is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although... distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one of the separate offenses arising from the single act or omission-the offense carrying the highest punishment. (Neal v. State of California (1960) 55 Cal.2d 11, 18-21....)” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
As the California Supreme Court has explained, “‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’” (People v. Rodriguez (2009) 47 Cal.4th 501, 507, quoting Neal v. State (1960) 55 Cal.2d 11, 19.)
In reviewing whether the trial court erred in failing to apply section 654 to a case involving multiple punishments, we are mindful that “the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.” (People v. Hutchins, supra, 90 Cal.App.4th at p. 1312.)
B
Defendant asserts that his assault on Andrews constituted an indivisible course of conduct under section 654. Although defendant inflicted a continuous barrage of physical and psychological pain on Andrews for 45 minutes on January 12, 2007, his course of conduct was not indivisible.
Defendant first caused Andrews to suffer a great deal of physical pain by hitting her head until it was covered with big lumps, giving her a black eye, flicking her arms until they were covered in bruises, and hitting her in the knees until the sutures from her surgery were nearly all broken. Defendant’s intent to cause Andrews to suffer physical pain amply sufficed for a single conviction of infliction of corporal injury on a cohabitant. (§ 273.5, subd. (a).)
Defendant next sought to denigrate and frighten Andrews by telling her that their son “would be better off” without them. Defendant retrieved his gun and held it to Andrews’s head as he repeatedly threatened to shoot her in the knees and kill her. Andrews believed defendant would carry out the threat, which made her feel “disposable.” Andrews testified, “I kept thinking I could not believe I was going to die in that stupid trailer. Just having visuals of, you know, what would happen after somebody was shot or somebody coming in and finding somebody dead.” Defendant terrorized Andrews in a manner supporting conviction of assault with a firearm (§ 245, subd. (a)(2)) and criminal threat (§ 422).
After putting the gun aside, defendant restrained Andrews from leaving by putting his legs on her knees and thighs. In doing so, defendant caused Andrews a great deal of pain because he put his weight on the surgery wound that he reopened with his blows. Defendant’s preventing Andrews from leaving his trailer had a separate intent than his hitting her on the head and arms, or holding the gun to her head while threatening to kill her.
Although defendant’s assault on Andrews might be summarized as a course of conduct causing her to suffer, the possibility of a single broad description of criminal activity is not conclusive under section 654. (People v. Lochmiller (1986) 187 Cal.App.3d 151, 153.) Defendant’s numerous blows to Andrews’s head, arms, and knees caused a distinct set of injuries from the psychological terror inflicted by the repeated threats to kill her. Equally distinct from the intent underlying defendant’s initial blows and subsequent death threats was defendant’s restraint of Andrews by keeping her pinned on his bed. The trial court did not err in sentencing defendant consecutively for his convictions of assault with a firearm (count 2) and false imprisonment by violence (count 4).
However, the trial court erred in failing to stay defendant’s sentence for criminal threat (§ 422) because the threat was made at the same time and with the same intent as the assault with a firearm (§ 245, subd. (a)(2)). Although the Attorney General implies that defendant’s death threats were not entirely concurrent with his pointing a gun at Andrews, the testimony given by Andrews establishes that the threats and use of the gun were temporally coterminous.
This is not a case in which the criminal threat occurred at a different time than the violent act. (Cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1022 [section 654 held not to apply when defendant set fire to victim’s apartment an hour after issuing the death threat].) Nor was the criminal threat made for a purpose other than that underlying the assault with a firearm. (Cf. People v. Nichols (1994) 29 Cal.App.4th 1651, 1656-1657 [holding section 654 inapplicable where defendant’s kidnapping and criminal threat had separate purposes of hijacking victim and dissuading victim from reporting the crime].) Defendant intended both his threat and the display of the firearm to convey the immediate prospect of death to Andrews.
The singular objective for assault with a firearm and criminal threat against Andrews requires that the sentence for the lesser sentence (i.e., criminal threat) be stayed under section 654. We shall order defendant’s sentence modified accordingly. (People v. Alford (2010) 180 Cal.App.4th 1463, 1470-1471.)
DISPOSITION
The judgment is modified to direct that the sentence for count 3 (Pen. Code, § 422 [criminal threat]) be stayed pursuant to Penal Code section 654. Accordingly, defendant’s sentence shall be 21 years and four months in state prison. In all other respects, the judgment is affirmed. The superior court is directed to issue an amended abstract of judgment reflecting the modification, and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P.J., HULL, J.
“Domestic violence means abuse committed against an adult who is a former spouse or a person with whom the defendant had a child.
“Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact [is] true.
“If the People have not met this burden, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and based on that decision also conclude that the defendant was likely to commit and did commit the crimes charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each element of each charge beyond a reasonable doubt.
“Do not consider this evidence for any other purpose.”