Opinion
B295965
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIO OWEN POWELL, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No.BA457533) APPEAL from a judgment of the Superior Court of Los Angeles County, Richard S. Kemalyan, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle, and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Mario Powell appeals from his conviction for felony criminal threats and misdemeanor assault against his mother. He contends there was insufficient evidence to establish the elements of a criminal threat. He also argues his counsel rendered ineffective assistance by failing to offer expert testimony regarding his mental illness or to request a jury instruction on mental impairment as related to the specific intent necessary for a criminal threat. Finally, he challenges the trial court's use of aggravating factors in determining his sentence and contends his trial counsel was ineffective for failing to object during sentencing. We conclude there was sufficient evidence to support a criminal threats conviction. We also reject defendant's ineffective assistance claim and his challenge to his sentence. We therefore affirm.
PROCEDURAL HISTORY
On July 17, 2017, defendant was charged by information with one count of felony criminal threats (Pen. Code, § 422, subd. (a); count one) and one count of felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count two). Defendant's mother, Estela, was the alleged victim in both incidents. The information further alleged defendant suffered a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All further statutory references are to the Penal Code unless otherwise indicated.
At the request of defense counsel, defendant underwent a psychiatric evaluation by Dr. Jack Rothberg on August 14, 2017. Dr. Rothberg submitted a report stating that he examined defendant in order to assess his competency to stand trial and "any mental health mitigating factors." According to the report, defendant stated he had a history of paranoid delusions and auditory hallucinations, and reported he had been diagnosed as bipolar. Dr. Rothberg opined that defendant understood the nature and purpose of the criminal proceedings, but expressed "serious concerns" about defendant's ability to assist his counsel or make decisions about his case. Dr. Rothberg concluded that defendant "requires more aggressive treatment with antipsychotic medication. He is not yet stabilized, and it would be premature to take him to trial." He also opined that defendant had "substantial mental health issues" including chronic paranoid schizophrenia.
On August 24, 2017, based on the report from Dr. Rothberg, the court found defendant incompetent to stand trial, adjourned criminal proceedings, and ordered him committed to a state mental hospital until his competency was restored. The court also authorized the involuntary administration of psychotropic medication.
Defendant was admitted to Patton State Hospital on December 8, 2017. In a report submitted on December 19, 2017, the staff psychologist and psychiatrist at Patton stated that the working diagnosis for defendant was schizoaffective disorder, bipolar type. The doctors opined that defendant was not yet competent to stand trial and should be retained for further treatment, but there was a "substantial likelihood" that defendant would achieve competence in the "foreseeable future." The doctors further reported that defendant was taking several psychotropic medications daily, which were required to effectively treat his mental illness.
On March 29, 2018, the Patton medical director certified that defendant had regained competency. The report from Patton noted that in January, 2018, defendant had "several physical altercations with peers due to apparent paranoia." However, the doctors opined that defendant's mental illness had stabilized and no longer negatively affected his trial competency.
Criminal proceedings were reinstated, and jury trial began on June 25, 2018. The trial ended in a mistrial on June 28, 2018.
A second trial commenced on September 24, 2018. On October 2, 2018, the jury found defendant guilty of making criminal threats as charged in count one. On count two, the jury found defendant guilty of the lesser included offense of misdemeanor simple assault (§ 240).
Defendant waived his right to jury trial of the prior conviction allegations and subsequently admitted them. At the sentencing hearing, the court acknowledged that "this case has troubled me since the verdict came in," because of defendant's mental health issues, but it felt "somewhat constrained" in what it could do post-trial. However, the court indicated it would consider a locked mental health facility for defendant, if he qualified. The court offered to continue the hearing to allow defendant's counsel to investigate this option, but defendant declined. The court sentenced defendant to a total of six years in state prison, comprised of the upper term of three years on count one, doubled pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). On count two, the court imposed a concurrent sentence of 180 days. The court struck the five year prior conviction enhancement pursuant to section 1385. Defendant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
Defendant's mother, Estela, testified that defendant was living with her at the time of the incidents in 2017. On May 14, 2017, Estela arrived home around 10:30 p.m. She heard defendant calling to her from the bathroom, asking her to look at something in the bathtub. Estela looked in the tub and told defendant that she did not see anything. Defendant insisted there was a strand of hair in the tub and ordered her to clean it up. He began to get upset. Estela tried to leave the bathroom but defendant locked the door. He blocked the door, grabbed a belt hanging from the door, and held it up as if he was going to hit her with it.
Estela testified that defendant was "cussing me," calling her a "bitch," and "commanding" that she clean up whatever was in the bathtub, and she realized "he was not himself." Then defendant put his arm around her neck so that it was hard for her to breathe. She described that defendant was "kind of choking me." Defendant was also speaking to her "like he didn't recognize who I was." Estela struggled with defendant, trying to get out of his grasp and get the door open; finally, the door handle came off and she was able to get out of the bathroom. She ran across the street to her mother's house and called the police. The police arrived and took defendant to the hospital.
The next day, Estela received a call at work that defendant was going to be released from the hospital. She told the woman calling that defendant "couldn't come to my house because I was scared of him." When she came home from work that evening, she saw defendant's car outside her house. Estela knew defendant was there and felt scared, so she went to her mother's house and again called the police. While she was on the phone with the police, defendant came into the room. Estela testified that defendant told her not to speak to the police because he did not want to go to the hospital, and if he did go to the hospital, "he will find somebody to get me." She also testified that defendant's statements to her during the call made her feel scared.
According to Estela, when the police arrived, they told her they could not do anything and could not take defendant back to the hospital. After that, Estela felt helpless, concerned for her safety, and thought defendant needed to go back to the hospital. Defendant left and Estela stayed at her mother's house for the next several days because she did not want to face defendant. A few days later, she went to the police station and made a report as to the bathroom incident and defendant's statements during her 911 call. She testified that she was still scared at that time. Afterward, the police arrested defendant.
On cross-examination, Estela stated defendant was "[a]cting like he was mentally ill" during both incidents and testified that he previously had been hospitalized and put on medication. She also said defendant had never previously cussed or yelled at her like he did in the bathroom. She called the police on both days because she wanted defendant to get help, and she was scared because "he was not himself."
The prosecution played the recording of Estela's May 15 911 call. During the call, Estela told the 911 operator that "the police came yesterday and he . . . tried to choke me." Defendant could be heard in the background of the call denying that he choked Estela and saying "she's lying." Estela responded that defendant hit and choked her. After the operator questioned Estela about her address and a description of defendant, defendant stated, "Okay mom watch, watch. Watch what happens. . . ." The operator told Estela, "I'm hearing him threaten you so . . ." and Estela responded, "yes ma'am."
Estela next explained to the 911 operator that she told defendant that "I don't want him in-in the house because I don't feel safe with him." She gave the operator defendant's description and her name, and defendant stated, "Like fuck you up like really fuck you up." The operator told Estela to "go somewhere safe" while waiting for responding officers, "because I hear him in the background yelling and threatening you." Defendant then stated, "fuck you up mom. . . . You better take it easy. I will find people and you will . . . I will find people." Estela told the operator that defendant was "psychotic."
II. Defense Evidence
Defendant testified against the advice of his counsel. He stated that when he was in the bathroom on May 14, 2017, he noticed a long piece of hair in the bathtub. He described himself as a "neat freak" and went to tell his mother about the hair. Defendant denied asking Estela to clean the tub, taking a belt from the door, or engaging in any physical altercation with her in the bathroom. He testified that he asked her several times where the hair came from because he "felt like she wasn't telling me the truth." He admitted he was annoyed by his mother's responses. He also testified that he was diagnosed with obsessive compulsive disorder and washed his hands a lot.
Defendant testified that the following day, he saw his mother at his grandmother's house when Estela was on the phone with 911. When defendant heard the 911 call played during trial, he testified that he did not remember making the threatening statements and denied that the voice making those statements on the call was his, although he did recognize his voice during other portions of the call.
DISCUSSION
I. Sufficiency of the Evidence of Criminal Threats
Defendant contends there was insufficient evidence that his statements during his mother's second 911 call constituted a criminal threat under section 422. We disagree.
A. Standard of Review
We review claims challenging the sufficiency of the evidence to uphold a judgment under the substantial evidence standard. Under that standard, we review "the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.'" (People v. Bean (1988) 46 Cal.3d 919, 933, quoting People v. Hillery (1965) 62 Cal.2d 692, 702.)
B. Analysis
In order to sustain a finding that defendant made a criminal threat in violation of section 422, the prosecution must prove: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat . . . was 'on its face and under the circumstances in which it [was] made, . . . 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,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Here, defendant contends the evidence does not support two of the elements of the charge—that the threat must be unequivocal, unconditional, and immediate, and that it must actually cause the victim fear. We examine each in turn.
1. Unequivocal, unconditional, and immediate
"Section 422 requires that the threat be 'so unequivocal, unconditional, immediate, and specific [that it] convey . . . a gravity of purpose and an immediate prospect of execution of the threat. . . .' It is clear that the nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined 'on its face and under the circumstances in which it was made.'" (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.), citing People v. Bolin (1998) 18 Cal.4th 297, 339-340 (Bolin).) "'The use of the word "so" in [section 422] indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.'" (Bolin, supra, 18 Cal.4th at p. 340; People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157.) "The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim." (People v. Stanfield, supra, 32 Cal.App.4th at pp. 1157-1158.)
Defendant relies on Ricky T., supra, 87 Cal.App.4th 1132 in support of his argument that his threat lacked the degree of immediacy required under section 422. That case is readily distinguishable. In Ricky T., supra, 87 Cal.App.4th at p. 1135, a 16-year-old student became angry when his teacher accidentally hit him with a classroom door. The student told the teacher he was going to "get" him or "kick [his] ass." The teacher felt threatened and sent the student to the school office. (Id. at pp. 1135-1136.) The court found that the student's words did not establish an immediate threat, given the lack of corroborating circumstances. (Id. at p. 1137.) In particular, it observed that the police were not called about the incident until the following day, there was no history of disagreements between the student and the teacher, and no evidence that a "physical confrontation was actually imminent." (Id. at p. 1138.) The court thus concluded that the student's "intemperate, rude, and insolent remarks hardly suggest any gravity of purpose" and that those remarks were "no more than a vague threat of retaliation without prospect of execution." (Id. at p. 1138.)
Defendant argues that, in context, his statements here "conveyed the message that he would find someone to harm his mother if she sent him back to Exodus Hospital." As such, he contends the statements lacked the requisite immediacy. We disagree. According to Estela's testimony, defendant did not want her to call the police because he did not want to go back to the hospital. Upon finding Estela reporting details about him during a 911 phone call, defendant threatened that if she continued the call, he would "fuck [her] up" and told her, "watch what happens." Both Estela and the 911 operator recognized defendant's statements as a threat, and the operator advised Estela to immediately "go somewhere safe." Moreover, the day before, defendant had choked Estela and threatened to hit her with a belt. Estela testified that she was afraid defendant would hurt her. Under these circumstances, there was sufficient evidence for the jury to find that defendant made an immediate threat.
Defendant also threatened Estela that if he was sent back to the hospital, he would "find people" and Estela testified that she understood this meant he would find someone to harm her. Defendant argues it is implausible to reasonably expect he could actually do so "from inside the confines of a psychiatric ward, or any other penal institution." However, immediately prior to this threat, defendant had been released from the hospital after only being held overnight. Moreover, Estela testified regarding her past struggles when defendant was released from the hospital before she felt he was adequately treated for his mental illness, as well as her ongoing fear for her safety. The court must look to the "effect the threatening words have on the victim," and the "degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538; People v. Brooks (1994) 26 Cal.App.4th 142, 149 [conditional threats are true threats if their context reasonably conveys to victims that they are intended].) In this instance, we conclude the definition was met, given Estela's statements indicating her fear of defendant and her belief he would carry out his threat to harm her, coupled with evidence of defendant's violence toward her the day before. (See, e.g., People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432 [defendant had a history of threatening and assaulting victim].)
2. Causation
Defendant also argues that there was no evidence his threats were a substantial factor in causing Estela's fear. Rather, he contends her fear was the result of his actions the day before and his "ongoing mental deterioration." The record does not support defendant's attempt to parse the evidence in this way.
Defendant suggests, without citation to authority, that his conviction required evidence "specifically link[ing]" the threats to Estela's stated fear and notes that Estela did not "directly testify that she was scared of appellant because of the verbal threat." We conclude there was substantial evidence from which the jury could have found that defendant's threats during the 911 call were at least a partial cause of Estela's fear. Although she was already afraid of defendant based on his earlier behavior, Estela testified that defendant's statements to her during the call made her feel scared. She also testified that she stayed away from her home for several days following the phone call because she was afraid of defendant and what he might do. This evidence was sufficient to allow a jury to find that defendant's threats caused Estela to be in fear.
Accordingly, we conclude there was sufficient evidence to support defendant's conviction on count one.
II. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective in two ways. First, trial counsel failed to present expert testimony regarding his mental illness as relevant to the specific intent required to establish a criminal threat. Second, he contends his counsel failed to request a jury instruction on the same issue. He further argues that he was prejudiced as a result, because his inability to form the required specific intent due to his mental illness was the core of his defense to the criminal threats charge. We conclude that defendant has not met the heavy burden to establish ineffective assistance on direct appeal.
A. Legal Framework
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance was deficient and that he was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) First, to establish deficient performance, a defendant must show that counsel's representation was objectively unreasonable "under prevailing professional norms." (Id. at p. 688.) Second, a defendant can show prejudice where there is "a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694; see also People v. Goldman (2014) 225 Cal.App.4th 950, 957.) Unless defendant establishes otherwise, we presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
If the record "'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) "Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
B. Background
Prior to trial, the prosecution sought to exclude any reference to defendant's mental illness as related to his ability to form specific intent, absent testimony from an expert or defendant. Defense counsel responded that "mental illness in this case is part and parcel of the case. It's inextricably linked in terms of what happened." Defense counsel told the court that she did not intend to ask any of the witnesses whether defendant had the ability to form the required specific intent; however, she did not rule out the possibility of arguing the point to the jury. Based on that representation, the court granted the motion.
The court also told the parties it was confused as to how the references to defendant's mental illness on the 911 call would come in if "nobody has an expert to testify as to the mental illness." Later, the court indicated it would order redaction of the "diagnostic terms" referenced in the 911 call, "without the benefit of medical expertise," but would otherwise allow general testimony regarding defendant's mental health. The court instructed Estela that she could not testify to a specific mental health diagnosis for defendant, as that could only be done by a medical doctor.
Throughout the trial, the court made several additional statements to counsel, outside the jury's presence, regarding its concern about the lack of a testifying medical expert. The court noted it believed the earlier representation by both counsel that "mental illness issues were inextricably woven in this case," but that it "should never have allowed the mental illness to be the subject of this trial absent medical testimony."
Defense counsel primarily focused her closing argument on defendant's mental illness and its effect on his actions during the two incidents. She argued that during the first incident in the bathroom, defendant was "totally fixated" on a purported hair in the bathtub, he "lost his grip," did not recognize his mother, and his behavior escalated as a result. Counsel argued that on the following day, during the 911 call, defendant "completely lost his grip. He's sick. He's in the throes of a psychotic episode." She further argued that the "biggest issue" for the threats charge was whether defendant had the specific intent to threaten his mother and stated that defendant did not have the necessary intent "because he was in the throes of a mental episode." Defendant's counsel also told the jury: "you're not here to criminalize the one who's mentally ill . . . that's not what the law intended."
In her rebuttal argument, the prosecutor stated that the jury's only job was "to decide whether something happened or not." She argued there was no evidence defendant was in the throes of a psychotic episode during the two incidents, noting that "[t]here was no doctor telling you that."
C. Failure to Introduce Expert Testimony
Defendant contends he received ineffective assistance because his counsel failed to introduce expert testimony regarding his mental illness. He argues such evidence would have been relevant to negate the specific intent required for his criminal threats charge.
Selecting which witnesses to call at trial is generally considered a tactical decision, which is accorded great judicial deference. (See, e.g., Bolin, supra, 18 Cal.4th at pp. 333-334.) Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of the available facts. (Id. at p. 333, citing Strickland v. Washington, supra, 466 U.S. at p. 690.) However, the failure to call a witness may constitute reversible error when it results from an unreasonable failure to investigate. (Bolin, supra, at p. 334.)
Here, there is no evidence establishing defense counsel failed to adequately investigate a defense based on defendant's mental condition. We cannot tell whether defense counsel consulted an expert, or whether that expert's testimony would have been favorable to the defense. The record before us is insufficient to assess whether the diagnoses defendant received when he was admitted to Patton State Hospital could support a conclusion that he was undergoing a mental illness episode when he threatened his mother during the 911 call three months earlier.
"On direct appeal, a claim of ineffective counsel cannot be established by mere speculation regarding the 'likely' testimony of potentially available witnesses." (People v. Medina (1995) 11 Cal.4th 694, 773.) "We cannot assume from a silent record that particular witnesses were ready, willing and able to give mitigating testimony, nor can we speculate concerning the probable content or substance of such testimony." (Ibid.; see also Bolin, supra, 18 Cal.4th at p. 334 ["We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation."].)
Defendant relies on People v. Frierson (1979) 25 Cal.3d 142, but that case is inapposite. In Frierson, the defendant's "sole defense at trial was an undeveloped theory of diminished capacity." (Id. at p. 159.) Two lay witnesses testified that defendant had taken Quaalude and PCP the day of the murder, and that he appeared dazed or "spaced out." No expert testified as to defendant's mental state and he "presented no evidence whatever, expert or otherwise, regarding the intoxicating effect, if any, which his use of undetermined amounts of Quaalude and [PCP] may have had upon his ability to form the necessary intent." (Id. at pp. 156, 159.)
In his habeas corpus petition, the defendant claimed he received ineffective assistance due to his counsel's failure to investigate and substantiate facts supporting a diminished capacity defense. (Frierson, supra, at p. 159.) Because he filed a habeas corpus petition, the defendant was able to allege facts outside the record demonstrating the inadequacy of his counsel. Specifically, in support of his petition, defendant submitted a declaration from a psychologist to the effect that PCP intoxication could mimic schizophrenia and declarations from other criminal defense attorneys giving their opinion on proper standards for such cases. (Ibid.) In addition, his trial counsel submitted a declaration admitting his awareness of the possibility of developing a successful diminished capacity defense, but stating that he decided not to "seek or obtain an expert appraisal of defendant's mental condition or of the effect of the drug PCP upon his physical and mental condition." (Id. at pp. 160, 163.) Based on that record, the court concluded that defense counsel had failed to reasonably investigate defendant's sole defense, and defendant was thereby deprived of his right to effective trial counsel. (Id. at p. 164.)
Here, the defense based on defendant's mental illness was also the sole defense. However, in contrast to Frierson, this is a direct appeal. There is no evidence in the record before us that counsel failed to adequately investigate the issue, or lacked a tactical reason for failing to call an expert. (See People v. Jones (2003) 30 Cal.4th 1084, 1115.) The court raised the issue of the lack of expert testimony several times, but did not directly ask defense counsel for an explanation. Defense counsel did not seek to introduce evidence of defendant's diagnoses, but she did elicit testimony from defendant and his mother focused on his history of mental illness and his mental state at the time of the incidents. Counsel then argued in closing that this evidence supported a finding that defendant lacked the specific intent required for criminal threats.
Although the court was clearly uncomfortable with allowing lay witness testimony about defendant's mental state without accompanying expert testimony, Estela was permitted to testify generally on the issue. "On this record, and without a clearer picture of the available testimony or evidence, we have no practical basis for second-guessing counsel's tactical appraisal of the risks in presenting it." (Medina, supra, 11 Cal.4th at p. 774; see also Bolin, supra, 18 Cal.4th 297, 317 ["Since the decision may well have been 'an informed tactical choice within the range of reasonable competence, the conviction must be affirmed."]; People v. Datt (2010) 185 Cal.App.4th 942, 952-953 [defendant "failed to establish that his trial counsel failed to consult an expert or that such an expert would have been able to provide favorable testimony"].)
D. Failure to Request Jury Instruction
Defendant also contends his trial counsel was ineffective for failing to request the jury instruction CALCRIM No. 3428, which reads in pertinent part: "You have heard evidence that the defendant may have suffered from a mental (disease[,] / [or] defect[,] / [or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state [required for the charged crimes]. If the People have not met this burden, you must find the defendant not guilty of [the charged crimes]."
The court has no sua sponte duty to instruct on mental impairment as a defense to specific intent. (People v. Larsen (2012) 205 Cal.App.4th 810, 823.) However, the trial court must give CALCRIM No. 3428 if requested by defendant and if substantial evidence supports the defense theory that defendant's mental disease or disorder affected the formation of the relevant intent or mental state. (Ibid; see also People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Saille (1991) 54 Cal.3d 1103, 1119.) The jury may consider evidence of mental impairment and its effect on the defendant's ability to form any mental state required for the offense charged. (§ 28; People v. Reyes (1997) 52 Cal.App.4th 975, 983-985.)
Defendant's trial counsel did not request that the trial court instruct the jury with CALCRIM No. 3428. Respondent argues that defense counsel had no basis to request the instruction, as defendant presented no expert medical testimony regarding defendant's mental illness. Indeed, "expert medical opinion testimony is necessary to establish that a defendant suffered from a mental disease, mental defect, or mental disorder within the meaning of CALCRIM No. 3428, because jurors cannot make such a determination from common experience." (People v. Larsen, supra, 205 Cal.App.4th at p. 824; see also People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117 ["Without expert medical testimony establishing that defendant was suffering from a mental disease, defect, or disorder at the time of the commission of the crime, there was no evidentiary or legal basis for" giving jury instruction.]; People v. Cox (1990) 221 Cal.App.3d 980, 987.)
Defendant contends that expert testimony was unnecessary, and that his own testimony, as well as Estela's, regarding his mental illness was sufficient to establish the factual basis for the jury instruction. But he fails to cite to authority supporting this proposition or to address the cases cited by respondent. Instead, defendant's cited cases address the admissibility of lay witness testimony offering general observations regarding mental health; they do not discuss the requirements to support giving CALCRIM No. 3428. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1227 [court erred in excluding lay witness statement that the witness had trouble remembering "because of his brain cells" as opinion evidence relevant to witness's cognitive difficulties]; People v. Crosier (1974) 41 Cal.App.3d 712, 722-723 [in addition to "extensive expert psychiatric testimony," lay witness opinion of defendant's mental condition was also admissible].) Thus, because no expert testimony was presented, defense counsel had no basis upon which to request the instruction, and her failure to do so was not unreasonable.
III. Sentencing
The trial judge imposed the upper term for the criminal threats conviction, finding that factors in aggravation outweighed mitigating circumstances. Defendant contends the court erred by improperly considering an element of the crime as an aggravating factor, and that his attorney was ineffective for not objecting. Respondent contends this claim was forfeited and, further, there was no prejudicial error. We affirm.
A. Standard of Review
We review a trial court's sentencing decisions for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational." (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) That showing amounts to a determination that "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) Furthermore, it is defendant's burden to show that the sentencing decision was irrational or arbitrary. (People v. Lai, supra, 138 Cal.App.4th at p. 1258.)
"[A] trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (People v. Sandoval, supra, 41 Cal.4th at p. 848; see also People v. Weber (2013) 217 Cal.App.4th 1041, 1063.) That we may disagree with the trial judge's reasonable sentencing choice is insufficient, as the appellate court is "'neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
B. Background
In the probation report, the probation officer found four aggravating factors: the victim was particularly vulnerable, defendant's prior convictions were numerous or increasingly serious, defendant was on parole when he committed the current crimes, and the manner of the current crimes indicated planning, sophistication, or professionalism. The report did not find any mitigating factors.
The trial court sentenced defendant to the upper term of three years for the criminal threats count, doubled to six years pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). At the sentencing hearing, the court found the following aggravating factors: (1) defendant committed a crime which threatened to result in the death or great bodily injury of his mother; (2) he was previously convicted of a crime resulting in a prison commitment; and (3) he was on active parole at the time of the incident. In addition, the court noted, "although determined by the jury to be a misdemeanor rather than a felony in regard to the battery, [defendant] did engage in an act of violence . . . toward his mother." The court also found as a mitigating factor that defendant might have been "suffering from a mental condition, and that mental health issue does reduce his culpability."
C. Analysis
As a general rule, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Baker (2018) 20 Cal.App.5th 711, 720, quoting People v. Scott (1994) 9 Cal.4th 331, 356; see also People v. Wall (2017) 3 Cal.5th 1048, 1075.) Defendant failed to object during sentencing and has thus forfeited his claim. However, we will address the merits "to show counsel was not constitutionally ineffective by failing to make a futile or meritless objection." (People v. Reyes (2016) 246 Cal.App.4th 62, 86.)
Defendant contends the trial court erred in considering as an aggravating factor his threat to commit an act resulting in death or great bodily injury against his mother, because that fact also constituted an element of the criminal threats offense. Courts "generally cannot use a . . . fact constituting an element of the offense either to aggravate or to enhance a sentence." (People v. Scott (1994) 9 Cal.4th 331, 350; see § 1170, subd. (b); Cal. Rules of Court, rule 4.420, subds. (c), (d).)
Respondent concedes that a threat to commit an act resulting in death or great bodily injury is an element of the criminal threats offense, but contends that "the fact that the victim was [defendant's] mother is not an element." But the trial court did not indicate that it was relying on the victim's relationship with defendant as the aggravating factor, and respondent does not suggest how that would be an appropriate consideration.
But even assuming that the trial court erred in relying on the threat of death or great bodily injury as one factor in support of imposition of the upper term, any error was harmless. Sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them in qualitative as well as quantitative terms. (People v. Avalos, supra, 47 Cal.App.4th at p. 1582; People v. Sandoval, supra, 41 Cal.4th at p. 847.)
"The mere fact a trial court erroneously relies upon certain factors in imposing an upper term does not per se require reversal. Reversal is only required where there is a reasonable probability the trial court would sentence the defendant differently absent the erroneous factors. [Citation.] Thus, where the trial court has stated several factors warranting the upper term, and only some of those factors are erroneous, the sentence is generally affirmed." (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319; see also People v. Price (1991) 1 Cal.4th 324, 492.) Indeed, an upper term sentence may properly be imposed where even a single aggravating factor is present. (People v. Black (2007) 41 Cal.4th 799, 813, citing People v. Osband (1996) 13 Cal.4th 622, 728; People v. Holguin, supra, at p. 1319.)
Here, the trial court relied on at least two valid aggravating factors: defendant's prior prison commitment and the fact that he was on parole at the time of the current crimes. Moreover, during the sentencing hearing, the trial court repeatedly stressed its concern for the safety of defendant's mother and other family members, noted their expressed fear of defendant, and stated that it had given a great deal of thought to imposing a sentence that accounted for these concerns, as well as for defendant's mental illness. Under these circumstances, it is not reasonably probable that the court would have imposed a more favorable sentence absent reliance on one of the three aggravating factors.
Defendant also argues that the trial court improperly relied on the separate misdemeanor assault conviction as an aggravating factor in imposing the sentence on the threats conviction. We are not convinced that the record supports this contention. In any event, we conclude that any error would be harmless for the reasons we have discussed.
We are not persuaded otherwise by defendant's reliance on People v. Levitt (1984) 156 Cal.App.3d 500 (Levitt), disapproved on another ground in People v. Johnson (2016) 62 Cal.4th 600, 659, fn. 6. There, the trial court relied on five aggravating factors and one mitigating factor in imposing the upper term. The appellate court found that two of the five aggravating factors were improper. (Id. at pp. 514-517.) The court concluded that the defendant was not prejudiced by the errors because in that case, "the record indicates a virtual certainty that the erroneous factors did not affect the balance of the trial court's judgment." (Id. at p. 518.) However, the court noted that "absent unusual circumstances, the presence of a mitigating factor renders improper reliance on an aggravating factor prejudicial, since, with the improper factor eliminated, the presence of mitigation might reasonably affect the balance of the trial court's judgment." (Id. at p. 518.)
Levitt does not support adoption of a different standard for prejudice than the "reasonably probable" standard where both aggravating and mitigating factors are present. (See People v. Price, supra, 1 Cal.4th at p. 492 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper"]; see also People v. Holguin, supra, 213 Cal.App.3d at p. 1319 [no prejudice where one of several aggravating factors was erroneous, despite presence of mitigating factor].) Moreover, we have concluded that the court appropriately exercised its discretion based on a careful analysis of defendant's circumstances. We cannot conclude under these circumstances that it is reasonably likely the balance of factors would be affected by excluding the erroneous aggravating factor.
To the extent we disagree with Levitt, supra, 156 Cal.App.3d 500, defendant's suggestion that we are bound by that decision is incorrect. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456 [explaining the "rule requiring a court exercising inferior jurisdiction to follow the decisions of a court exercising a higher jurisdiction"].) --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.