Opinion
B221040
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. DARRYLL MERCADEL, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA045765)
APPEAL from the judgment of the Superior Court of Los Angeles County. John Murphy, Judge. Affirmed.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
SUMMARY
Darryll Mercadel (defendant) was charged by amended information with one count of burglary (Pen. Code, § 459) (count 1); two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (counts 2, 3); three counts of criminal threats (Pen. Code, § 422) (counts 4-6); one count of misdemeanor vandalism (Pen. Code, § 594, subd. (a)) (count seven); with having suffered prior strike and serious felony convictions (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subd. (a)(1)); and with personal use of a deadly weapon for counts 1, 4, 5, and 6 (Pen. Code, § 12022, subd. (b)(1)). The jury convicted defendant of burglary (count 1), the lesser included offenses of misdemeanor assault (counts 2 and 3) and attempted criminal threats (count 4), and misdemeanor vandalism (count 7). He was acquitted of the remaining counts, and the jury found the weapon use allegation was not true.
Defendant admitted his prior convictions, but moved to dismiss his priors under Romero and Burgos After denying his motion to dismiss, the trial court sentenced defendant to an indeterminate term of 25 years to life, plus five years under Penal Code section 667, subdivision (a)(1). The sentence on count 4 was stayed under Penal Code section 654. A concurrent 180-day jail term was imposed for the vandalism count. On appeal, defendant contends the trial court abused its discretion when it: (1) admitted evidence of defendant's 1993 convictions for burglary and assault with a deadly weapon; and (2) denied his motion to dismiss one of his 1993 felony convictions. We disagree, and therefore affirm.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos).
FACTS
Defendant and E.C. had been romantically involved for 15 years, and married for nearly five years when they separated in February of 2009, and defendant moved out of the family home in Palmdale, California. On February 19, 2009, E.C. saw defendant while at her friend's house. E.C. was drinking brandy, and defendant was drinking a beer. He was also taking medication, and had his cane with him. Defendant tried to reconcile with E.C. and mentioned that he needed his birth certificate from the family home. E.C. did not wish to speak with defendant and left her friend's house to avoid further contact with him. When she arrived home, her adult sons J.M. and C.W. were downstairs with C.W.'s friend I.J. E.C.'s and defendant's minor children were upstairs watching television. C.W. was doing homework, and I.J. was watching a football game, drinking, and smoking marijuana.
At about 9:30 p.m., defendant knocked on E.C.'s door. When she answered the door, she opened it only halfway, because she did not want to let defendant in the house. Defendant asked for his birth certificate and his power drill. He had his cane, and was wearing wrist and back braces for pain. E.C. told defendant to wait, closed the door, and retrieved the items. She opened the door and passed them to defendant, who then asked for the drill's attachment. E.C. locked the door and went upstairs to retrieve the drill attachment. She then heard a "bump or two on the door."
E.C. knew that if defendant entered the home, he would not leave. She did not wish to see him, so she ran upstairs. When she reached the top of the stairs, defendant had broken open the front door and was in the house.
Defendant walked quickly to the living room where J.M., C.W., and I.J. were sitting. C.W. and J.M. went into the kitchen. C.W. said he acted in response to the sound of the door breaking and the intrusion. I.J. remained seated on the sofa.
As defendant made his way to the living room, he tripped over a rug and fell down. When he tried to get up, C.W. and I.J. pushed him down, and defendant landed on his back. C.W. jumped on top of defendant and grabbed his wrists and pinned them to his chest. I.J. then picked up a baseball bat that was resting near the bathroom door, so that no one else would grab it. He was on parole for drug possession with intent to sell and knew he could violate his parole by possessing the bat. He had never seen it before and denied it was his. C.W. did not know where the bat had come from.
E.C. came downstairs and saw the front door was broken and that defendant was pinned on the floor. She saw I.J. with a baseball bat. She went upstairs and called 911, telling the operator that defendant had kicked the door open as she attempted to slam it shut, entered the house with a bat, and was threatening to kill everyone. E.C. also told the operator that defendant had threatened her over the last several weeks, and had been violent with her in the past.
Los Angeles County Sheriffs arrived within minutes. Defendant was still pinned down when deputies walked in the house. He was bleeding from the lips and complaining about back pain.
Deputy Veronica La Barge interviewed E.C., J.M., C.W., and I.J. She reported that E.C. told her defendant was angry that E.C. opened the front door only enough to pass him the birth certificate. E.C. saw defendant break down the door and enter with a baseball bat poised over his shoulders, saying he was going to kill everyone there. He started after E.C., and she ran upstairs, locked herself in a bedroom with their minor children, and called 911. E.C. denied making these statements at trial, and admitted she could not see what was occurring downstairs, and only assumed the door was kicked down because it was broken. She also never saw defendant with a bat, but assumed it was his since she had not seen it in her home before.
Deputy La Barge also testified that E.C. told her defendant was abusive and that E.C. did not report the abuse because she did not want the police involved. E.C. denied any long-standing abuse at trial, but did admit to an incident 12 years before, when she called the police after both she and defendant became violent with each other. She had also called the police several times due to defendant's verbal abuse and his refusal to leave their house. On these occasions, the police response time had been poor, and E.C. claimed she fabricated allegations of physical abuse in this instance to ensure a quick response, and to ensure that defendant would be required to leave the home and not return. E.C. testified she did not want defendant convicted because of her lies, and insisted she did not lie in court. C.W. testified defendant had been physically violent with E.C. in the past.
C.W. and I.J. told Deputy La Barge that defendant had fallen when he tried to hit them with a baseball bat, and that I.J. had taken the bat away from defendant. At trial, C.W. did not recall making any such statement to Deputy La Barge, and testified that defendant had not attempted to assault them. I.J. similarly denied that anyone was threatened or assaulted by defendant, and testified that E.C. had lied to the 911 operator. He was angry to be in court, and admitted he threatened to "crumble" the prosecution's case, but denied providing untruthful testimony at trial.
Defendant had convictions for assault and burglary arising from a 1993 incident where he broke into the home of his former girlfriend, S.B., and stabbed her. The prosecutor sought to admit evidence of these prior offenses under Evidence Code sections 1101, subdivision (b), and 1109. Defendant objected and sought to exclude evidence of these convictions, reasoning that the prior and current offenses were not sufficiently similar, and that the evidence was highly prejudicial. The trial court admitted the prior offenses, concluding that "it seems to me that that intent is a primary issue in this case as is motive, and the court finds that the probative value is [not] outweighed by the prejudice to the defendant. . . . [T]he court will permit this evidence to come in." These convictions were also the basis for the Three Strike allegations in the amended information.
S.B. testified at trial. In 1993, S.B. and defendant were romantically involved, had a young child together, and had lived together. At the time of the crimes, she and defendant were separated, and he was not living with her. She claimed she could not remember the 1993 burglary and assault. She was impeached with her testimony from the 1993 preliminary hearing, where she testified she had ended her relationship with defendant, and shortly thereafter he knocked on her window and door, calling her name. When she did not respond, he broke in through her window, said, " 'Didn't I tell you, bitch, if I caught you with someone, I will kill you,' " and stabbed her on the shoulder with a kitchen knife with a five-inch blade. He was going to stab her again when he was interrupted by S.B.'s oldest daughter, at which time he ended his attack and left.
S.B. was also impeached with the testimony of District Attorney Investigator Cindy Palm. During the investigation in this case, Palm called S.B., who became very upset and hung up on her. S.B. called Palm a few minutes later to apologize, and discussed the 1993 incident, recounting the details disclosed in the preliminary hearing. S.B. denied making those statements to Palm, and said that she would have told Palm anything to get her to leave her alone.
At the time of trial, S.B. was on good terms with defendant, and did not want to be involved in the case, but had no choice because she was subpoenaed to testify. After receiving the subpoena, S.B. contacted E.C. E.C. told her that C.W. and J.M. "jumped" defendant. S.B. described E.C. as hostile and controlling, and said that E.C. would often "provok[e]" defendant.
The jury convicted defendant of burglary (count 1), the lesser included offenses of misdemeanor assault on J.M and C.W. (counts 2 and 3) and attempted criminal threats on E.C. (count 4), and misdemeanor vandalism (count 7). Prior to sentencing, the trial court reviewed a July 2, 2009 probation officer's report. According to the probation report, defendant has a lengthy criminal history, including numerous arrests beginning in 1978 for burglary, drugs, assault, driving under the influence, unlawfully carrying weapons, driving on a suspended license, domestic violence, and disorderly conduct, to name only a few. In the years since his 1993 qualifying strikes, defendant was convicted of two misdemeanors for driving with a suspended license and driving without a license, and was arrested for disorderly conduct/being under the influence of drugs and domestic violence. The trial court denied defendant's motion to dismiss his prior strike convictions for sentencing purposes, concluding that defendant "is clearly within the ambit of the Three Strikes law" due to his criminal history and the fact that the current crime was "almost an exact repeat of the 1993 burglary and knife attack." Defendant argued that at least one of his prior felony strikes should be dismissed because both felonies arose from the same incident. The trial court rejected this argument, concluding that "the single act" concept is just a factor providing guidance to the court. Defendant then filed this timely appeal.
The dispositions of the drugs and domestic violence charges are unclear, so we will assume that defendant was not convicted of these offenses.
DISCUSSION
Defendant contends the trial court abused its discretion when it: (1) admitted evidence of defendant's 1993 convictions for burglary and assault with a deadly weapon, and (2) refused to dismiss one of defendant's 1993 strike convictions. Because we conclude the trial court properly admitted the evidence of defendant's prior convictions, which were highly probative of intent, and that the record supports the denial of defendant's motion to dismiss his prior strike convictions, we affirm.
1. Admission of Prior Offense Evidence
Defendant moved to exclude evidence of his 1993 burglary and assault convictions, reasoning there were no factual similarities between the prior and current offenses, and that the prior incidents were too remote and prejudicial. We disagree.
Generally, past crimes are inadmissible to prove defendant committed the charged offense. Evidence Code section 1101 provides that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) However, Evidence Code section 1101, subdivision (b) permits admission of evidence that a person committed a crime or other act when it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. (Evid. Code, § 1101, subd. (b).) Further, Evidence Code section 1109 permits evidence of past domestic violence in domestic violence prosecutions, but precludes admission of past acts more than 10 years old "unless the court determines that the admission of this evidence is in the interest of justice." (Evid. Code, § 1109, subd. (e), emphasis added; id., § 1109, subd. (a).)
The admissibility of evidence of other crimes depends on: (1) the materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to prove those facts (e.g., similarity between the charged and uncharged offenses); and (3) the existence of any rule or policy requiring exclusion of the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1243; People v. Kelly (2007) 42 Cal.4th 763, 783.) The least degree of similarity is needed to prove intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute on other grounds as discussed in People v. Britt (2002) 104 Cal.App.4th 500, 505.) A greater degree of similarity is needed to prove common design or plan. The greatest degree of similarity is required to prove identity. (Ewoldt, at pp. 402-403.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' " 'probably harbor[ed] the same intent in each instance.' [Citations.]" ' " (Id. at p. 402.)
Even if a defendant's uncharged criminal conduct is relevant, the court must still determine whether its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, confusion of the issues, or misleading the jury. (Evid. Code, § 352; People v. Balcom (1994) 7 Cal.4th 414, 426-427.) We review the trial court's decision in admitting evidence of a defendant's uncharged misconduct for abuse of discretion. (Ewoldt, supra, 7 Cal.4th at p. 405.)
We conclude the trial court did not abuse its discretion in admitting evidence of defendant's 1993 burglary and assault. The 1993 incidents shared common features with the charged offenses, sufficient to support an inference that defendant intended to harm E.C. when he broke into E.C.'s home, and that defendant planned to exact revenge on E.C. for rejecting him, as he had done previously to S.B. In both instances, defendant was rejected by his wife or partner with whom he shared children, sought entry to the home he once shared with them, was denied entry by his partner, forcefully entered the home with a weapon, made threats to his partner, and was prevented from completing his attacks only when other family members intervened. Given the similarities between the two instances, the 1993 incident was highly probative of defendant's intent and motive. To prove burglary, the People were required to show defendant intended to commit a felony when he entered E.C.'s home. (Pen. Code, § 459.) The proffered evidence was probative of defendant's intent to assault and threaten E.C.
Furthermore, the incidents were not rendered inadmissible under Evidence Code section 1109, subdivision (e) for this same reason; the evidence was highly probative because of the similar nature of the crimes, and therefore, the admission of the evidence was clearly "in the interest of justice." (Evid. Code, § 1109, subd. (e); People v. Johnson (2010) 185 Cal.App.4th 520, 537-538 [similarity between 20-year-old crime and newly charged crime was adequate basis for admission notwithstanding Evid. Code, § 1109, subd. (e)].)
Likewise, the evidence was not unduly prejudicial under Evidence Code section 352. Although the prior incidents occurred 16 years earlier, the remoteness of the conduct goes to its weight, rather than admissibility, and the similarity between the acts supports its admission. (See People v. Branch (2001) 91 Cal.App.4th 274, 284-285.) The evidence was not likely to confuse the jurors, consume undue time, or inflame the jurors' prejudice against defendant. Given the significant relevance of the evidence, we cannot conclude the trial court abused its discretion in allowing its admission.
Assuming without suggesting it is true that the evidence should have been excluded, any claimed error was harmless. The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878.) As is evident from our discussion of the facts, the evidence against defendant was substantial, and it is clear the jury accepted some facts as true while appropriately rejecting others. Evidence regarding the 1993 incident was only a small portion of the prosecution's case. We find no reason to conclude that defendant would have received a more favorable result had the testimony regarding the 1993 incident been excluded. 2. Romero/Burgos Motion
Defendant also complains that the trial court abused its discretion in denying his motion to dismiss his 1993 strike convictions. He argues that his two 1993 prior strikes arose from a single act, and therefore at least one of the strike allegations should have been dismissed. He also argues that he does not fall within the spirit of the Three Strikes law, reasoning that he is disabled and only had misdemeanor Vehicle Code violations following his 1993 convictions. We disagree, and find no error in the trial court's rulings.
Trial courts have discretion under Penal Code section 1385 to dismiss Three Strikes allegations in the furtherance of justice. We review the trial court's decision under the abuse of discretion standard of review. (Romero, supra, 13 Cal.4th at pp. 529-530; People v. Carrasco (2008) 163 Cal.App.4th 978, 992-993.) An abuse of discretion occurs only when the trial court was not aware of its discretion to dismiss, where the court considered impermissible factors, or where the defendant clearly falls outside the spirit of the Three Strikes law. (People v Scott (2009) 179 Cal.App.4th 920, 926 (Scott))The analysis is whether, in light of the nature and circumstances of the present felonies and prior qualifying convictions, and the particulars of the defendant's background, character, and prospects, he may be deemed outside the spirit of the Three Strikes law and should therefore be treated as if he had not previously been convicted of the other qualifying felonies. (People v. Carrasco, at p. 993.)
It is well settled that even if a prior conviction was subject to a stay under Penal Code section 654, the stayed sentence still qualifies as a strike under the Three Strikes law. (See People v. Benson (1998) 18 Cal.4th 24, 36 (Benson).) In a footnote, however, the Benson court noted: "Because the proper exercise of a trial court's discretion under [Penal Code] section 1385 necessarily relates to the circumstances of a particular defendant's current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected -- for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct -- that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (Id. at p. 36, fn. 8.)
In Burgos, supra, 117 Cal.App.4th 1209, the court seized on the footnote in Benson to conclude that the trial court abused its discretion by refusing to dismiss a Three Strikes allegation where two prior convictions for attempted carjacking and attempted robbery were based on a single act of attempting to take the victim's car. (Burgos, at pp. 1215-1216.) Central to its analysis was the carjacking statute's proscription against punishment for both robbery and carjacking. (Id. at p. 1216; see also Pen. Code, § 215, subd. (c) [even though a defendant may be charged and tried for both carjacking and robbery, no defendant may be punished for both when both crimes are based on the same act].) The court concluded that the "two prior convictions, attempted carjacking and attempted robbery, were . . . 'so closely connected,' having arisen from the same single act, that failure to strike one of them must be deemed an abuse of discretion." (Burgos, at p. 1216.)
More recently, the court in Scott rejected the comprehensive rule announced in Burgos. It found instead, when prior convictions that qualify as strikes arose from the same act, the trial court has the discretion to dismiss one of them on that basis, but is not required to do so. (Scott, supra, 179 Cal.App.4th at pp. 930-931.)
Here, defendant's qualifying strikes consist of a 1993 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and burglary (Pen. Code, § 459) stemming from defendant's breaking into S.B.'s home and stabbing her. These crimes did not arise from the "same act" as in Burgos (e.g., attempting to take a car). Defendant forcibly entered S.B.'s home, threatened her, and then attacked her. Plainly, the trial court was not precluded from using both offenses as qualifying strikes under the Three Strikes law. (Benson, supra, 18 Cal.4th at p. 36.) This case is distinguishable on its facts from Burgos, where the exact same act gave rise to both counts. (Burgos, supra, 117 Cal.App.4th at p. 1216.) Also, Scott squarely rejected the inflexible rule posed by Burgos, and instead concluded the fact that two strikes arise from the same act is merely a factor for the court to consider when exercising its discretion to dismiss a strike. (Scott, supra, 179 Cal.App.4th at pp. 930-931.)
Here, the trial court properly understood its discretion to consider the closeness of the crimes as a factor in making its determination on defendant's motion to dismiss, and denied the motion nonetheless. Defendant did not live a crime-free life either before or after his 1993 offenses. His probation report paints a dismal picture of a repeated criminal offender. The violent and severe nature and circumstances of the present offenses and prior qualifying convictions, and the particulars of defendant's background, character, and prospects, adequately supported the trial court's ruling that defendant should not be treated as if he had not previously been convicted of the other qualifying felonies. Therefore, we can find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.