People v. Novak CA2/6 ( 2020 )

Filed 11/6/20 P. v. Novak CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299217
(Super. Ct. No. 2016029090)
Plaintiff and Respondent, (Ventura County)
v.
HOWARD THEODORE
NOVAK,
Defendant and Appellant.
Howard Theodore Novak appeals from the judgment
after a jury found him guilty of voluntary manslaughter (Pen.
Code,1 § 192, subd. (a)).2 The jury also found true the allegation
that he used a deadly and dangerous weapon. (§ 12022, subd.
1 Further unspecified statutory references are to the Penal
Code.
2The jury found him not guilty of the greater offenses of
first and second degree murder. (§§ 187, subd. (a), 189, subds.
(a), (b).)
(b)(1).) The trial court sentenced Novak to a state prison term of
12 years, which consisted of the upper term of 11 years for
voluntary manslaughter plus one year for the enhancement.
Novak contends the trial court erred when it (1)
admitted a video of his police interview, and (2) sentenced him to
the upper term. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
Novak was married to his wife, Patti,3 for 13 years.
They lived together with her adult son, K.H.
Novak kept many weapons in the house including
guns, metal batons, and knives. He kept a machete next to the
front door. Novak possessed several knives and would often have
one clipped to his pants even when he was at home. Novak
practiced self-defense moves with a knife in front of a mirror.
K.H. often argued with Novak and Patti. Sometimes
the arguments between Novak and K.H. became physical. On
one occasion, K.H. pulled out a kitchen knife and told Novak, “I’m
tired of you poking at me and making fun of me. And every time
you see me, you criticize me.” Novak responded, “You couldn’t
hurt me if you tried.” Patti intervened and K.H. put the knife
away.
Novak told Patti that he “feare[d] that one day [K.H.
would] lose his temper too much and that he might hurt him.”
Novak said he would have to defend himself if K.H. tried to hurt
him. Novak asked Patti to write a note which stated: “Should
[K.H.] harm Howard Novak, Howard may file charges as needed.”
3 Pattisuffered from cancer and died prior to trial. The
jury was presented with a video of her testimony.
2
Novak also put surveillance cameras inside the house for
“[p]rotection in case of intrusions or disagreements in the family.”
On the night of the incident, Novak and K.H. got into
an argument. Novak stabbed K.H. twice with a knife—once in
the upper abdomen and once in the chest. K.H. died. Novak
called 911 and said he stabbed K.H. He explained that he was
talking to K.H. about doing his chores when K.H. “shoved [him]
up against the wall.”
Police officers arrived at the home and arrested
Novak. One of the officers searched Novak and found a
“kubaton” (a pen-sized weapon designed to hit pressure-points on
the body). The police found the folding knife used to kill K.H. on
a shelf inside the home. The police also found a sheathed
machete on a shelf next to the front door and a “push knife” (a T-
shaped carbon fiber knife that is roughly four inches in length)
inside Novak’s wallet.
Novak told an officer that K.H. punched him in the
chest and jaw. However, when the officer checked to see if Novak
had injuries, there was “no evidence of traumatic injury to either
of those spots.” Photographs of Novak’s face and chest also
showed no injuries.
Police detective Dan Swanson interviewed Novak
twice. During the first interview, Novak said that K.H. had
knocked him to the ground, threatened to “cut [him] in half” with
a machete, and then walked towards the machete. Novak said
that K.H. continued to move toward the machete when Novak
took out his knife, so he stabbed K.H. Novak said that K.H.
“continued to go to the machete,” so he stabbed him a second
time.
3
Swanson obtained the surveillance video from inside
Novak’s home. The video captured both stabbings. During a
second interview, Swanson and Novak watched the surveillance
video together. Recordings of the surveillance video and the
second interview were played for the jury.
Defense Evidence
Novak testified that there were several instances
when K.H. would get physical with him, and a few instances
when K.H. pushed Patti. He recalled an instance when K.H.
threatened to burn down the house with Novak and Patti in it.
On the night of the incident, Novak knocked on
K.H.’s door. K.H. opened the door, hit Novak, and shoved him
against a wall. K.H. then hit Novak on the jaw, causing him to
fall to the ground. K.H. told Novak, “I’m going to kill you,” and
“I’m going to cut you in half with your own machete.” Novak said
K.H. moved towards the front door, where the machete was
located. Novak then stabbed K.H. in the abdomen to “try to fire a
warning shot.” When K.H. tried to grab the knife, Novak stabbed
K.H. a second time in the chest.
Novak’s friends also testified that Novak was afraid
of K.H. and said that there were instances when K.H. hit Novak.
DISCUSSION
Video of Swanson’s Interview of Novak
After the presentation of the defense evidence, the
prosecution sought to introduce rebuttal evidence in the form of
the video of Swanson’s second interview of Novak, in which they
watched the surveillance footage together. During the interview,
Novak made inculpatory statements including as follows:
“[Swanson]: And it looks like the knife is in your
hand.
4
“[Novak]: Yes I see it there.
“[Swanson]: Okay. So that’s, that’d be your right
hand?
“[Novak]: Correct.
“[Swanson]: Taking a swing. It looks like he’s facing
you now. His back’s towards the front door. Is that
correct?
“[Novak]: Correct. That’s right. And he was . . . .
“[Swanson]: And his hands are out in front of him.
“[Novak]: Yeah.
[¶] . . . [¶]
“[Swanson]: . . . What I am concerned about, though,
is what that video shows is different than your actual
statement in terms of distance and timing and his
physical motion, and more importantly, . . . what that
video shows me is the entire time that you two were
on video and engaged, and we know that you are
armed with a knife, you are aggressing him, you’re
going after him, and he is attempting to defend
himself. And that is a vastly different version of
events than you explained. Your mindset
notwithstanding, the words he said notwithstanding,
that is not a man who is trying desperately to get a
5
machete or is going to come get you. This is a man
who is defending himself against being stabbed.
That’s what that video shows me, both of those. And
if you disagree with me—and it’s not about the words
he said. . . I’ll just accept [¶] . . . [¶] that he said
them. Do you see something different than him
defending himself against your strikes?
“[Novak]: No, I see him defending.”
The trial court admitted the video evidence. In so
doing, it stated, “I will certainly give an admonition to the jury
that they’re being provided this information to consider Mr.
Novak’s statements, not to consider Detective Swanson’s opinions
. . . [¶] . . . But I also know that Detective Swanson testified
pretty clearly that he made statements in this case . . . in a way
to sort of jar conversations and see how people react.” The court
reasoned that Swanson’s statements “contextualizes whatever
the answer was. I’m not allowing Detective Swanson through a
Miranda interview to testify as an expert witness and give the
jury evidence of his theory of the case because that’s not
permissible.” (Italics added.)
Before the prosecution played the video of the
interview, the trial court instructed the jury that “whatever the
attorneys say is not evidence. Their questions are important only
if they help you understand the witness[’s] answers, because it’s
the witness[’s] answers that are evidence. The same [principle]
holds true for the Miranda interviews, because what the
detectives say isn’t necessarily evidence. The detectives’
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questions are important only to contextualize what the answer
that the person being questioned is giving.” (Italics added.)
Analysis
Novak contends the trial court erred when it
admitted the video. He contends that because the “majority of
the dialogue is Detective Swanson telling appellant his opinion
that appellant was the aggressor and [K.H.] was defending
himself,” the video contains inadmissible opinion evidence that
must be excluded. We review the court’s ruling on the
admissibility of evidence for abuse of discretion. (People v.
Waidla (2000) 22 Cal.4th 690, 725.)
The trial court did not abuse its discretion. An
interviewer’s questions and statements are admissible for the
purpose of giving context to the interviewee’s responses. (See
People v. Maciel (2013) 57 Cal.4th 482, 524 [officer’s questions
and statements during a recorded interview were properly
admitted to give context to the defendant’s responses].) Here, the
trial court did not admit Swanson’s statements as opinion
testimony, but rather, it properly admitted them because they
“contextualize[] whatever the answer was.” Novak admitted that
K.H.’s back was to the machete after being stabbed the first time
and that K.H. was defending himself. Without Swanson’s
questions and statements, these admissions alone would not have
made sense. (Ibid.)
Moreover, the trial court instructed the jury that it
could not consider Swanson’s questions and statements as
evidence. The court admonished that the “detectives’ questions
are important only to contextualize what the answer that the
person being questioned is giving.” (See People v. Turner (1994) 8
Cal.4th 137, 190 [statements properly admitted where they gave
7
context to the defendant’s admission and the jury was instructed
of the limited purpose], abrogated on other grounds by People v.
Griffin (2004) 33 Cal.4th 536.) We presume the jury followed the
court’s instruction. (Turner, supra, at p. 190.) There was no
error.
Sentencing
Novak contends the trial court erred when it
sentenced him to the upper term of 11 years. This contention
lacks merit.
“When a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of the
appropriate term shall rest within the sound discretion of the
court.” (§ 1170, subd. (b).) “In determining the appropriate term,
the court may consider the record in the case, the probation
officer’s report, other reports . . . and statements in aggravation
or mitigation submitted by the prosecution, the defendant, or the
victim, or the family of the victim if the victim is deceased, and
any further evidence introduced at the sentencing hearing.”
(Ibid.) “The court shall set forth on the record the reasons for
imposing the term selected.” (Ibid.)
We review a trial court’s sentencing decision for
abuse of discretion. (§ 1170, subd. (b); People v. Sandoval (2007)
41 Cal.4th 825, 847 (Sandoval).) “The trial court’s sentencing
discretion must be exercised in a manner that is not arbitrary
and capricious, that is consistent with the letter and spirit of the
law, and that is based upon an ‘individualized consideration of
the offense, the offender, and the public interest.’ [Citation.]”
(Ibid.) A trial court abuses its discretion if “it relies upon
circumstances that are not relevant to the decision or that
otherwise constitute an improper basis for decision.” (Ibid.)
8
The trial court did not abuse its discretion when it
imposed the upper term. The court identified two aggravating
factors: (1) there was an “unusual amount of high degree of
cruelty and viciousness in this case”; and (2) Novak posed an
“unreasonable risk to society.” A “high degree of cruelty,
viciousness, or callousness” of the criminal act and a defendant’s
engagement “in violent conduct that indicates a serious danger to
society” are both relevant aggravating factors that a trial court
may consider when sentencing. (Cal. Rules of Court, rule
4.421(a)(1), (b)(1).) The court found these two factors
“outweigh[ed] any factors in mitigation,” including Novak’s lack
of a prior record.
Novak contends the trial court abused its discretion
because it improperly considered his lack of remorse as an
aggravating factor. He argues that the court “bootstrapp[ed] an
improper factor (lack of remorse) onto a proper one”
(unreasonable risk to society). Although the court stated that
Novak “would pose an unreasonable risk to society if [the court]
was to release him” because of his lack of “insight into his own
behavior,” this was not the only basis for the court’s finding. The
court also noted its own observation of Novak’s action from the
surveillance video, Novak’s intent to kill, and the fact that he
“stashed” deadly weapons around the house and in his pockets
“at all times.”
But even if we assume the court erred in considering
Novak’s lack of remorse, the trial court also identified the high
degree of cruelty and viciousness of the offense as an aggravating
factor. The “finding of even one factor in aggravation is sufficient
to justify the upper term.” (People v. Steele (2000) 83 Cal.App.4th
212, 226.)
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Finally, Novak contends the jury’s verdict did not
support the finding that his acts were committed with a high
degree of cruelty and viciousness. (Sandoval, supra, 41 Cal.4th
at p. 838.) We disagree. The court found that given “the unusual
amount of high degree of cruelty and viciousness in this case, this
was more than self-defense. This was him trying to kill [K.H.].
And I don’t think that that was necessary under the
circumstances.” The verdict is consistent with this finding—the
jury found that Novak unreasonably believed that deadly force
was necessary when it found him guilty of voluntary
manslaughter. There was thus no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
10
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Arielle Bases, 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, Zee Rodriguez and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.