People v. Andrews CA5 ( 2024 )

Filed 10/11/24 P. v. Andrews CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F087066
Plaintiff and Respondent,
(Super. Ct. No. BF194735A)
v.
MARCQUAL DEAN ANDREWS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa,
Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P. J., Snauffer, J. and DeSantos, J.
INTRODUCTION
Marcqual Dean Andrews, appellant, was convicted of violating a restraining
order, making criminal threats, corporal injury to a spouse, vandalism, violation of a court
order, resisting arrest and carjacking. He was sentenced to 27 years eight months in
prison.
On appeal, appellate counsel filed a brief that summarized the facts with citations
to the record, raised no issues, and asked this court to independently review the record
pursuant to People v. Wende (1979) 25 Cal.3d 436. Appellant did not file a supplemental
brief on his own behalf. We affirm.
STATEMENT OF FACTS
K.P. had known appellant for 10 years, and in June 2022, married him in a
religious ceremony.1 The beginning of the marriage was great, and K.P. described
appellant as “a blessing.” However, two or three months after being married, K.P. began
to notice things missing from her apartment such as her cell phones, tablets, her
children’s games and business products, and found out appellant had a drug problem.
When K.P. asked appellant about the missing items, he would get violent with her and
“put his hands” on her. K.P. called the police, and ultimately got her first restraining
order against appellant on April 25, 2023.
On May 5, 2023, appellant was convicted of violating the April 25, 2023
restraining order. On May 8, 2023, K.P. was sitting in her car smoking and listening to
music, with her window down, when appellant came “out of nowhere.” He started
attacking K.P. and punched her in the head and face. K.P. got out of the car and began
fighting appellant, who threw her to the ground. Appellant then jumped into the car and
drove off.
K.P. called the police, got into her second vehicle, and followed appellant to a
nearby park, then several streets over near some apartments. When police arrived, they
1 The marriage was not legally recorded, although K.P. stated she considered herself
married to appellant.
2.
were able to locate K.P.’s vehicle, but not appellant, who K.P. said left on foot. Due to
not having a copy of the keys to her first car, K.P. was not able to recover the car that day.
When she did get the keys, the car was gone, and she did not recover it until May 16,
2023. The car was ultimately found near appellant’s grandmother’s house.
On May 10, 2023, at around 2:00 a.m., appellant tried to kick K.P.’s front door
down. Appellant was outside of K.P.’s apartment, yelling, making noise and calling her
phone. Appellant also slashed the tires on K.P. and her father’s cars. K.P. called the
police. When they arrived, K.P. went outside and observed all four tires on her car, and
three of the tires on her father’s car were slashed and flat. K.P. spent $700 to replace the
tires.
That morning, K.P. also observed appellant stuff candy into her car’s tank, and she
believed the sugar caused damage to her car. It cost her $520 to have the gas tank and
other car components cleaned and repaired. Appellant continued to call and text K.P.
throughout the morning, telling her that he was watching and he would come to her house
and kill her and her family. Then around 7:00 a.m. or 8:00 a.m., appellant broke one of
the windows in her apartment, which cost $1,000 to replace.
On May 16, 2023, appellant was standing below K.P.’s bedroom window, talking
to her, while K.P. was telling him to go away. K.P.’s father walked up and began arguing
with appellant, and appellant pulled a gun out and was telling K.P. he was going to shoot
her. K.P. and her father called the police, but appellant continued to say that he was
going to kill K.P. K.P. testified she was so tired of his behavior she told him to just shoot
her. After K.P.’s father left to call the police, appellant continued to tell K.P. he was
going to kill her before the police arrived.
Once officers arrived, appellant had fled and was located hiding between some
bushes. He ignored officers’ commands and had to be pulled out from beneath the
bushes. Officers found keys to a vehicle later identified as belonging to K.P. inside
appellant’s pocket, and a pellet gun on the grass near the bushes. Officers believed the
gun was real until they picked it up. Officers arrested appellant.
3.
While in custody, appellant continued to call and send letters to K.P., who still had
an active restraining order against appellant. In a letter dated June 9, 2023, appellant
claimed he loved K.P. and was sorry she felt otherwise. In a letter dated July 3, 2023,
appellant called K.P. the “foulest female” he had ever met, then talked about check fraud
and wrote “ ‘I’m pretty sure you know where I’m going with all this. Please don’t make
me do it.’ ” K.P. testified she interpreted appellant’s statements as a threat not to go to
court.
A letter dated July 4, 2023, had a picture of the homicidal horror movie character
“Chucky” drawn on the envelope. K.P. testified she took the drawing to mean that
appellant was threatening to kill her. In the letter, appellant wrote “ ‘I refuse to let you
and your dad send me away,’ ” and “ ‘I guess I’ll have to send you all to the feds first.
That’s only [if] you all keep coming to court on me.’ ” Appellant threatened K.P. that he
would send letters to the federal government which would implicate K.P. in a crime
involving checks, and said, “ ‘I wrote the letters real good. I’m just waiting to see what
you all want to do. If you all come to my next court date on the 14th, I’ll send them off
immediately. I have someone who will call them to speed up the process.’ ”
K.P. also accepted over 50 jail calls from appellant. In one call, K.P. called
appellant a rat and said she would “have something” for appellant if he got out of
custody. K.P. explained she meant she was willing to do anything to protect herself,
including kill appellant if he tried to kill her.
PROCEDURAL HISTORY
On August 14, 2023, the Kern County District Attorney’s Office filed an amended
information charging appellant with violating a restraining order (Pen. Code,2 § 646.9,
subd. (b); count 1), three counts of making criminal threats (§ 422; count 2, 3, 8),3 willful
2 Undesignated references to code are to the Penal Code.
3 Count 2 alleged threats made against K.P. on May 8, 2023, count 3 alleged threats
made against K.P. on May 16, 2023, and count 8 alleged threats made against K.P. on
May 16, 2023. The dates in count 2 were amended at trial to May 9 and 10, 2023, and
4.
infliction of corporal injury on a spouse resulting in a traumatic condition (§ 273.5,
subd. (a); count 4), felony vandalism in excess of $400 (§ 594, subd. (b)(1); count 5),
violating a court order to prevent harassment (§ 273.6, subds. (a), (d); count 6),
carjacking (§ 215, subd. (a); count 7) and misdemeanor resisting, delaying or obstructing
a peace officer (§ 148, subd. (a)(1); count 9).
The amended information alleged appellant suffered a prior conviction on
February 10, 2015, for violating section 212.5, subdivision (c), second degree robbery.
As to counts 1, 2, 3, 4, 5, 6, and 8, the amended information alleged the prior conviction
qualified as a prior strike within the meaning of sections 667, subdivisions (c) through (j),
and section 1170.12, subdivisions (a) through (e). As to counts 2, 3, 7, and 8, the
amended information additionally alleged the conviction qualified as a serious felony
pursuant to section 667, subdivision (a). As to counts 1 through 8, the amended
information alleged nine aggravating factors. (Cal. Rules of Court, rule 4.421.)4, 5 No
aggravating factors or enhancements were alleged as to count 9.
the alleged victim in count 8 was amended to K.P.’s father at trial to reflect the evidence
presented and prevent confusion.
4 All further references to rules are to the California Rules of Court.
5 The crime involved great violence, great bodily harm, threat of great bodily harm,
or other acts disclosing a high degree of cruelty, viciousness, or callousness
(rule 4.421(a)(1)), appellant threatened witnesses, unlawfully prevented or dissuaded
witnesses from testifying, suborned perjury, or in any other way illegally interfered with
the judicial process (rule 4.421(a)(6)), the manner in which the crime was carried out
indicates planning, sophistication, or professionalism (rule 4.421(a)(8)), the crime
involved an attempted or actual taking or damage of great monetary value
(rule 4.421(a)(9)), appellant has engaged in violent conduct that indicates a serious
danger to society (rule 4.421(b)(1)), appellant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of increasing seriousness
(rule 4.421(b)(2)), appellant has served a prior term in prison or county jail under
section 1170, subdivision (h) (rule 4.421(b)(3)), appellant was on probation, mandatory
supervision, postrelease community supervision, or parole when the crime was
committed (rule 4.421(b)(4)), and appellant’s prior performance on probation, mandatory
supervision, postrelease community supervision, or parole was unsatisfactory
(rule 4.421(b)(5)).
5.
On August 25, 2023, appellant made a Marsden6 motion, which was denied
following a hearing. On August 10, 2023, appellant stipulated to his violation of
postrelease supervision being heard concurrent with the instant case. The violation was
not stated in front of the jury, and the trial court granted a motion not to mention
appellant’s supervision status to the jury.
On August 14, 2023, the trial court granted a motion to bifurcate the priors and
aggravating factors. Following the jury trial on the substantive charges, appellant
personally waived his right to a jury trial on the priors and aggravating factors. The court
advised appellant as follows:
“There are some allegations related to some prior conduct that also
related to what we call aggravating factors, which are to be considered at
the time of sentencing if there’s a felony conviction.
“You have a right to have the same jury that heard the substantive
charges hear your aggravating factors as well as any prior allegations. You
can also waive that right and have the Court make those determinations, or
you can make an admission to any or all of the priors and/or aggravating
factors.
“Your attorney has advised me you had an opportunity to discuss
that with her and that you’re prepared to waive your right to jury trial and
exercise your right to what we refer to as a court trial as to priors and
aggravating factors; is that correct?”
Appellant responded, “Yes,” nodded in the affirmative and stated he had no other
questions about his right to a jury trial on the priors and aggravating factors.
Trial Objections
On cross-examination of Officer Jose Gamboa, appellant elicited the following
line of questioning:
“[DEFENSE COUNSEL]: When [you’re] investigating a matter
like this, and you have in your mind a potential weapon, and a person is
finally detained, you asked the individual questions, correct?
6 People v. Marsden (1970) 2 Cal.3d 118.
6.
“[GAMBOA]: Correct.
“[DEFENSE COUNSEL]: And part of that is to try to determine
what actually occurred, correct?
“[GAMBOA]: That’s correct.
“[DEFENSE COUNSEL]: Because up until that point, up until the
point that [appellant] was detained, you only had one very specific version
of the events, correct?
“[GAMBOA]: Well, what was provided to us, yes.
“[DEFENSE COUNSEL]: And one of the things you tried to
investigate to accurately get all the information, is trying to determine why
an individual would even put themselves in the position like what is
commonly referred to [as] a 148, which is resisting or obstructing?
“[GAMBOA]: Correct.
“[DEFENSE COUNSEL]: And isn’t it true that in response to that,
part of the investigation, [appellant] advised you—”
The People objected on hearsay grounds, and the objection was sustained.
Following the close of evidence, the trial court revisited the objection, and noted that it
did not believe there was a viable exception to the hearsay rule. Appellant argued the
statements spoke to his state of mind at the moment, with respect to resisting arrest and
explaining why he ran, and his belief that the keys in his pocket were to a car he owned.
The People argued there was no party opponent exception to hearsay available to
appellant because he was the one trying to introduce his own statements, and there was
no hearsay exception which would allow the statements to come in unless appellant
testified.
The trial court sustained the objection. The court noted that while the statements
would be relevant, appellant would need to take the stand and be subject to
cross-examination for the statements to be admissible. The court found the statements
were self-serving hearsay and did not qualify under one of the recognized hearsay
exceptions.
7.
Appellant requested a jail phone call between himself and K.P. be played to the
jury. In the call, K.P. stated, “ ‘I’m going to tell everyone that somebody from the
Rolling 60s is snitching.’ ” The implication was that appellant was a member of a gang
called the Rolling 60s, and appellant argued that K.P. was threatening him with the
statement, and would send individuals from a gang to hurt him. Appellant further argued
that the statement was direct impeachment of K.P.’s prior testimony that she did not
threaten to harm appellant if he testified against her.7
The People objected to the statement and argued it did not qualify as direct
impeachment. The People further argued that the instant case did not have any gang
charges, and introducing gang evidence would be highly problematic and especially
prejudicial.
The trial court agreed with the People. The court ruled that the statement was
vague and would require explanation to help the jury understand its significance. As a
result, it would potentially require the introduction of completely collateral evidence
related to things like gang culture, and would unnecessarily prolong the trial, confuse the
jury and create undue prejudice. The trial court exercised its discretion under section 352
and found the probative value was substantially outweighed by the potential for
prejudice, jury confusion and undue consumption of time.
Jury Instructions and Jury Questions
In addition to the requested instructions, the trial court gave the attempt
instructions as to counts 2 and 3, and the misdemeanor lesser included instruction of
domestic battery as to count 4. The court declined to give the lesser included instruction
on simple assault and simple battery, because the court reasoned there was not a dispute
as to a qualifying relationship between appellant and K.P.
7 On cross-examination, appellant’s counsel asked, “[I]sn’t it true that you
threatened [appellant’s] life by sending gang members if he testified—[¶] … [¶]—against
you?” K.P. responded, “No.”
8.
On August 22, 2023, during deliberations, the jury asked for clarification on
counts 2 and 3, and whether the counts were for the same incident. The trial court
responded that count 2 related to conduct alleged to have taken place on or about May 9
and May 10, 2023, and count 3 related to conduct alleged to have taken place on May 16,
2023. The court referred the jury to CALCRIM No. 3500 in the jury instruction packet.
On August 23, 2023, the jury requested a readback of K.P.’s testimony mentioning
appellant to be gang affiliated.8
Verdict and Sentence
On August 23, 2023, the jury found appellant guilty as charged on counts 1, 3, and
5 through 9. The jury found appellant guilty of the lesser included offense of attempted
criminal threats in violation of sections 664 and 422 as to count 2, and the lesser included
offense of misdemeanor domestic battery in violation of section 243, subdivision (e)(1)
as to count 4.
The trial court found true the allegations pursuant to rules 4.421(a)(6) and
4.421(b)(1) through (5) true as to each felony count. The court found the allegation
pursuant to rule 4.421(a)(1) true as to counts 1, 5, 6, and 8; the allegation pursuant to
rule 4.421(a)(8) true as to each felony count except for counts 7 and 8; and the allegation
pursuant to rule 4.421(a)(9) true as to count 7 only. The court further found true
appellant suffered a prior serious or violent felony conviction pursuant to section 667,
8 K.P. testified about what appellant’s messages meant to her. She stated “[t]hat he
was going to do the things that he stated. Like how he’s saying blaming me 6-0. He’s
talking about his gang. He’s saying ‘cuz,’ he’s saying his gang because he’s a crip.
Rolling 60s, he’s saying 6-0. So I’m taking it very serious. You’re saying these things
and you’re putting it on your hood, your gang, whatever you feel you represent, so yes.”
The trial court then admonished the jury, “[t]he last answer will be allowed, but I want to
make sure it’s understood, again, this goes toward the witness’s state of mind. It’s not
offered for the truth of the matter contained in that statement but it does go to the state of
mind of the listener, in this case, [K.P.]”
9.
subdivision (e) and a prior serious felony conviction pursuant to section 667,
subdivision (a).
On September 20, 2023, appellant filed a Romero9 motion requesting the trial
court dismiss the strike or the five-year enhancement pursuant to section 667,
subdivision (a). Appellant noted the probation report filed on September 15, 2023,
recommended a sentence of 27 years eight months. Appellant argued that even if the
Romero motion is granted, he would still serve a lengthy sentence of 11 years
eight months.
On October 16, 2023, the People filed a sentencing brief opposing appellant’s
request. The People argued appellant fell within the spirit of the “Three Strikes” law, had
committed multiple felonies and misdemeanors since his 2015 conviction for robbery,
and dismissing the five-year enhancement would endanger public safety. The People
requested a sentence of 30 years four months.
The trial court ruled as follows.
“There is a suggestion that somehow there is a mental health issue as
well as a childhood trauma issue that impacted [appellant] and should be
considered by the Court as mitigation in this particular case. The Court did
not hear any evidence during the trial regarding any sort of mental health
factors from, for example, a mental health provider, a psychiatrist, or a
psychologist who perhaps has evaluated [appellant] and has an opinion in
that regard. Nor did I hear any evidence that—during the trial that
somehow some sort of childhood trauma played a significant role and was
connected to the—the commission of the offenses to which [appellant] was
found guilty. Without what I believe is necessary to have some sort of
competent evidence of those factors, it’s difficult for the Court to place
much, if any, weight in that situation, combined with the continued
assertions that the complaining witness or victim in this situation was
fabricating testimony and the circumstances of what happened, which I
don’t necessarily think is consistent with the other evidence presented
during the course of this trial. I believe I am left with a more traditional
and conventional Romero analysis looking at the factors such as the
9 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
10.
criminal history, the circumstances of the present offense, [and] the overall
punishment that would be contemplated and necessary if I were to deny the
grant of the Romero.
“In this situation, having reviewed the moving papers, including the
probation officer’s report, I’m looking at a criminal history that began when
[appellant] was, in fact, a juvenile back in 2006 and has continued fairly
consistently to the present offenses. There are consistent circumstances in
which there appears to be domestic violence dating back at least as far as
2011 where he was convicted in August of 2011 of a violation of …
[s]ection 236, commonly referred to as false imprisonment. He was
sentenced to felony probation including domestic violence counseling.
“There are other convictions that give the Court concern, including
misdemeanor violation of … [s]ection 422, along with a vandalism
conviction from October of 2013. There are obviously drug related
offenses. In 2014, there is the strike allegation pursuant to …
[s]ection 212.5[, subdivision] (c), where he was convicted. He did initially
receive a probationary sentence. I believe the sentence was actually
241 days which most likely was credit [for] time served at the time of
sentencing. There were several violations that ultimately led to a two-year
prison commitment.
“There have been prior felony convictions since that particular
conviction, including other offenses, felony offenses involving crimes of
violence, including a [section] 245[, subdivision] (a)(4) conviction from
2020, and most recently prior to this, another domestic violence related
situation from April 22, 2023. And the Court heard testimony about the
fact that it was almost immediately upon his release from that circumstance
that these new situations of violence and conduct began and continued until
his arrest.
“Giving all the consideration that the Court is allowed, it is the
Court’s measured opinion that while the Court does recognize I have the
discretion to strike the … [s]ection 212.5 allegation prior, pursuant to
[section] 667[, subdivision] (e) as well as under [section] 667[,
subdivision] (a), I do not believe it would be within the spirit of the Romero
line of decisions nor the Three Strikes law to strike that strike for purposes
of sentencing today.
“I note that the circumstances in this situation were an escalation of
prior domestic violence situations involving the same victim, and while the
Court is not here to comment on the health of the relationship that was the
underlying circumstance that created the domestic relationship, the Court is
11.
here to evaluate what happened in this situation. And I will note that it
appears to the Court and based on the jury’s guilty verdicts, it was not a
single incident that led to [appellant] being before the Court today. It was a
series of incidents, including an incident with what appeared to be,
although I think it eventually was determined to be akin to a firearm, but it
did appear to be a firearm. That increases the risk to public safety. It
increases the risk of danger to others, not just from [appellant] but from
others that might respond to being confronted with, for all intents and
purposes, what appears to be an actual, functioning firearm.”
The trial court declined to dismiss appellant’s prior strike conviction or the
section 667, subdivision (a) five-year enhancement. The court sentenced appellant to the
upper term of nine years on count 7, doubled to 18 years due to appellant’s prior strike,
with an additional five-year enhancement pursuant to section 667, subdivision (a). The
court further sentenced appellant to eight months on count 2, and 16 months on counts 3,
5, and 8—one-third the middle term as to each count, to run consecutively. The court
sentenced appellant to the upper term of eight years on count 1, and the upper term of
six years on count 6, stayed pursuant to section 654. Finally, the court sentenced
appellant to one year in jail on counts 4 and 9, misdemeanors, to run concurrently.
Appellant was sentenced to an aggregate term of 27 years eight months in prison.
The trial court assessed a $300 restitution fee, a $300 parole revocation fine, a
$360 court security fee, and $270 in conviction assessments. The court awarded
appellant a total of 185 days’ presentence credit. On October 23, 2023, appellant filed a
timely notice of appeal.
DISCUSSION
“[T]he constitutional right to assistance of counsel entitles an indigent defendant
to independent review by the Court of Appeal when counsel is unable to identify any
arguable issue on appeal. California’s procedure for securing this right requires counsel
to file a brief summarizing the proceedings and the facts with citations to the record, and
requires the appellate court to review the entire record to determine whether there is any
arguable issue.” (People v. Kelly (2006) 40 Cal.4th 106, 119.)
12.
“[A]n arguable issue on appeal consists of two elements. First, the issue must be
one which, in counsel’s professional opinion, is meritorious. That is not to say that the
contention must necessarily achieve success. Rather, it must have a reasonable potential
for success. Second, if successful, the issue must be such that, if resolved favorably to
the appellant, the result will either be a reversal or a modification of the judgment.”
(People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
We have independently reviewed the record on appeal and are satisfied no
arguable issues exist. (People v. Wende, supra, 25 Cal.3d at pp. 441–443.)
DISPOSITION
The judgment is affirmed.
13.