People v. MacKenzie CA2/2

Filed 12/23/13 P. v. MacKenzie CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE, B236878
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA078248)
v.
ORDER MODIFYING OPINION
DONALD JOSEPH MACKENZIE III, AND DENYING REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 25, 2013, be modified as
follows:
On page 5, the fourth sentence of the last paragraph, the word “would” is changed
to “could” so that the sentence reads: “Mr. Kordic told Deputy Jimenez that he believed
appellant could carry out the threat.”
On page 8, the last sentence of the first paragraph, the word “husband” is added so
that the sentence reads: “Mrs. MacKenzie obtained a restraining order against Mr. Hatefi
and Mr. Hatefi tried to obtain one against her husband.”
Beginning on page 10 through page 23, all references to “Markham” should be
changed to “Markman.”
There is no change in the judgment.
The petition for rehearing is denied.
BOREN, P.J. FERNS, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Filed 11/25/13 P. v. MacKenzie CA2/2 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE, B236878
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA078248)
v.
DONALD JOSEPH MACKENZIE III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C.
Taylor, Judge. Affirmed.
William L. Heyman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Russell A.
Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
******
Donald Joseph MacKenzie III appeals from the judgment entered upon his
conviction by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1),
count 1),1 two counts of making criminal threats (§ 422, counts 2 and 4), and failure to
care for an animal (§ 597f, count 3). The trial court sentenced appellant to a prison term
of three years and eight months. The court selected the middle term of three years on
count 1, and a consecutive eight months (one-third the middle term) on count 2. On
count 4, the trial court imposed a consecutive eight-month term and stayed the sentence
under section 654. Appellant was ordered to serve six months in Los Angeles County
Jail for the misdemeanor conviction on count 3.
Appellant contends (1) the prosecution committed misconduct and trial counsel
rendered ineffective assistance of counsel during jury voir dire, (2) the trial court erred
when it allowed the prosecution to present rebuttal evidence and denied the defense
request to present surrebuttal evidence, (3) the trial court erred in failing to instruct the
jury sua sponte with the unanimity instruction on counts 2 and 4, (4) the trial court erred
by placing time limits on the parties’ closing arguments, (5) there was insufficient
evidence to support his convictions on counts 1, 3, and 4, and (6) his convictions for
counts 2 and 4 were unlawful.
We affirm.
FACTS
Prosecution Evidence
On the evening of June 5, 2010, Pete and Monica Kordic and their three children
attended a graduation party at a neighbor’s house. When they returned to their home at
approximately 10:30 p.m., Mr. Kordic noticed someone standing next to his company
work van, which was parked in the street in front of his house. The individual was
photographing the van and from the illumination of the camera flash Mr. Kordic could
see the van had been painted with graffiti. As Mr. Kordic approached the van, the person
1 All further statutory references are to the Penal Code unless otherwise indicated.
4
taking the photographs ran across the street to the driveway of appellant’s house.
Mr. Kordic called the police and reported the vandalism.
Los Angeles County Sheriff’s Department (LACSD) Deputy John Huerta arrived
at the Kordic residence sometime after 11:00 p.m. The van which had been “tagged”
with spray paint was parked on the street. Mr. Kordic pointed out a CD cover that was on
the ground in the driveway behind Mrs. Kordic’s parked Chevrolet Suburban. The cover
was from a CD entitled “Megadeath, Killing is my business.” While Mr. and
Mrs. Kordic were talking to Deputy Huerta on the street, they noticed flashes of light
coming from appellant’s house. Mr. Kordic yelled “Hey, there he is.” Deputy Huerta
saw a person leave the area from where the flashes had come and go into appellant’s
house. When that person went inside all of the interior and exterior lights were turned
off. Deputy Huerta called for additional backup units.
When the additional units arrived, Deputy Huerta went to appellant’s residence
and knocked loudly on the door. He announced he was with the sheriff’s department and
wanted to perform a safety check. Appellant’s mother Socorro MacKenzie came out and
told Deputy Huerta that the only other person in the house was appellant, her son.
Appellant came outside and was excited and agitated. Deputy Huerta examined
appellant’s hands and clothing and found no spray paint on them. Deputy Huerta talked
about the vandalism to the van parked outside the Kordic residence and asked appellant
about it. Appellant said he only took a photograph of the van and then continued home.
Appellant showed Deputy Huerta the photographs in his camera, including a photograph
of Mr. Kordic’s van. Deputy Huerta returned to the Kordic residence and told them he
had spoken with appellant and his mother. He told them he had completed his
investigation and there was nothing else to be done.
On June 6, 2010, Mr. Kordic parked his work van in his driveway. He had
purchased some cleaning products and began to remove the graffiti from the van.
Mrs. Kordic came outside and gave him some additional cleaning materials. As
Mr. Kordic was cleaning the van, they both heard yelling coming from a window of a
room at appellant’s house. A younger male voice yelled, “This is my street. Get the fuck
5
off my street. I’ve been here 25 years. You called the fucking police on me?” There
was a moment of silence and then the voice yelled, “I’m going to kill them all.” At
1:07 p.m. Mrs. Kordic called the sheriff’s station. She was “very concerned” that the
threats were “geared and directed directly toward” her family. The deputy who answered
the telephone advised Mrs. Kordic to obtain a restraining order and transferred her to
Deputy Huerta’s voicemail.
Mr. Kordic finished cleaning the graffiti from the work van and began to move it
back onto the street. As he was backing out of his driveway, appellant ran into the
middle of the street and yelled something that Mr. Kordic did not hear. Appellant got
into a white truck at his residence and revved the engine. Appellant’s father told him not
to get into the truck. Appellant backed out of his driveway and pulled up in front of the
Kordic residence. The windows of appellant’s truck were down and appellant had his
dog with him in the truck. Appellant looked at Mr. Kordic and told him he was going to
kill Mr. Kordic’s whole family and slash their throats. Mr. Kordic was in fear for himself
and his family. Mrs. Kordic came outside to the front porch when she heard appellant’s
truck revving. She saw appellant, who was yelling, make a motion with his hand across
his throat. Mrs. Kordic did not hear the exact words appellant used and asked Mr. Kordic
what appellant had said. Mr. Kordic related that appellant said, “I’m going to kill you
and your whole family and I’m going to slice your throats.” Appellant sped off in the
truck down the street.
Jaleh Hatefi was walking up the street returning home from grocery shopping.
There was no sidewalk and Mrs. Hatefi was walking uphill near the curb of the street.
She was carrying bags of groceries and walked with her head down and slightly slouched
over. Mrs. Hatefi heard the engine of appellant’s truck and looked up and saw appellant
driving towards her. Appellant looked at Mrs. Hatefi and while keeping his right hand on
the steering wheel extended his left hand out the window and raised his middle finger.
Mrs. Hatefi jumped out of the way onto the grass on the other side of the curb.
Appellant’s truck came within two feet of striking Mrs. Hatefi. A few minutes after
appellant sped away down the street, appellant’s mother left her home driving a White
6
Ford Explorer. Appellant’s mother stopped and had a conversation with the Kordics
before driving off in the same direction as appellant.
At 1:34 p.m., Mrs. Kordic called the sheriff’s station. She reported that appellant
came in front of the Kordic’s house and threatened to kill the entire Kordic family and
slice their throats. Mrs. Kordic was scared and crying after she and her family were
threatened by appellant. Mrs. Hatefi saw that Mrs. Kordic was crying and distressed.
Mrs. Hatefi went home and told her husband that appellant had driven his truck towards
her. Mr. Hatefi called the police.
Shortly before 2:00 p.m. that afternoon, LACSD Deputy Erick Moultrie responded
to the Kordic residence to investigate a disturbance call that a person was threatening his
neighbors. He saw several people standing on the street and was flagged down by
Mr. Hatefi. Mr. Hatefi told Deputy Moultrie that appellant had tried to run over
Mrs. Hatefi. Mr. Hatefi pointed to appellant who was walking down the street with a
large black and white “shepherd-type” dog. The dog was not on a leash. Deputy
Moultrie called out to appellant and ordered him to stop. Appellant looked in Deputy
Moultrie’s direction and continued walking. Deputy Moultrie was wearing his standard
sheriff’s department uniform and his patrol car was parked on the street in clear view.
Deputy Moultrie approached appellant and again ordered him to stop. Appellant stopped
in front of his own house and his dog started barking viciously at Deputy Moultrie. The
dog growled and bared his teeth. Deputy Moultrie drew his duty weapon and ordered
appellant to secure his dog. Appellant told Deputy Moultrie “I don’t give a fuck. Go
ahead and shoot the dog, and you can shoot me, too.” Appellant’s family members came
out of the house and secured the dog. Deputy Moultrie detained appellant.
LACSD Deputy Pablo Jimenez and his training officer, Deputy Capra, also went
to the Kordic residence in response to the disturbance call. Mr. Kordic told Deputy
Jimenez that appellant said he was going to kill the whole Kordic family and slash their
throats. Mr. Kordic said that appellant yelled at his neighbors, had a violent temper, and
was mentally unstable. Mr. Kordic told Deputy Jimenez that he believed appellant would
carry out the threat. Mrs. Kordic told Deputy Jimenez that appellant told her husband
7
that he was going to kill the Kordic family by slashing their throats. Mr. Kordic also
informed Deputy Jimenez that appellant tried to hit Mrs. Hatefi with his car.
Deputy Jimenez talked to appellant who was being detained by Deputy Moultrie.
Appellant denied threatening to kill anyone or run over anyone. He stated he would
never try to run over any women or children. He claimed his neighbors were spying on
him and jumped over his fence and stole from him. Appellant’s vehicle was located
about a block away from his house. When asked by Deputy Jimenez, appellant had no
explanation why it was parked there.
Since the incident, Mr. Kordic lived in fear of appellant. He kept his children in
the backyard and installed surveillance cameras. He constantly looked over his shoulder
and was afraid to be in the front of his house. Mrs. Kordic was in fear of appellant
because of the unpredictability of his actions.
On July 17, 2010, appellant wrote and sent a letter to a neighbor which included
the following statements: “I’m sure you are aware of the big sting. Hell, I would do it
again in a heartbeat to protect my land and those I love.” “I hope that blond cunt, that
one across the street, don’t read this.” “I start trial on Thursday, July 22 in Torrance. So
far the Iranian has not showed up and, guess what? If he don’t show up, we’ll get the
case tossed.”
Defense Evidence
Appellant’s mother Socorro MacKenzie lived with her husband, and their sons,
appellant and Sean, across the street from the Kordics. Mrs. MacKenzie was asleep in
her house on the night of June 5, 2010. She testified to the following: She heard
knocking and got up to answer the door. Two sheriff’s deputies were at the door and they
informed her that they were investigating a report of vandalism on the street. They asked
to speak with appellant. One of the deputies entered the house and spoke with appellant
but did not arrest him.
Around 2006 or 2008, appellant was diagnosed with bipolar disorder and manic
depression. When manic, appellant did not eat or sleep and was delusional. He would
claim to have a great deal of money or a worldwide business and would talk about buying
8
a ranch and moving to Texas. Mrs. MacKenzie believed appellant was experiencing a
manic episode in the days preceding the visit by the sheriff’s deputies. At approximately
11:00 a.m. on June 6, 2010, the MacKenzies took away appellant’s car and parked it
away from their house so that he could not leave. In the past, appellant was beaten up
and robbed while experiencing manic episodes. The MacKenzies also had a 1965 white
Chevrolet pickup truck which was difficult to start and stalled if not warmed up properly.
They planned to disable the truck later that day.
On June 6, 2010, appellant was angry when he awoke to find his car was missing.
Appellant and his parents yelled at each other for a few minutes. Mrs. MacKenzie did
not hear appellant make any threatening statements to anyone across the street or hear
him yelling about people calling the police on him. Appellant grabbed the keys for the
pickup truck and left the house through the front door. Mr. MacKenzie pleaded with
appellant to return and yelled at the dog to come back in the house. Appellant backed out
of the driveway and drove away. The dog was in the truck with him.
Mrs. MacKenzie got in her 2002 Ford Explorer and followed appellant down the
street. She followed inches behind the truck appellant was driving. She saw him drive
past the Kordic residence and did not see him make any threats to the Kordics.
Mrs. MacKenzie never had any contact with the Kordics prior to the incidents in June
2010. She did not stop and have a conversation with them and she did not tell them that
appellant had mental illness problems. She saw a number of people on the street but did
not see Mrs. Hatefi. She never saw appellant swerve the truck at anytime. She followed
appellant closely and did not lose sight of him for approximately half a mile until she had
to stop at a traffic light. Mr. MacKenzie attempted to locate appellant by tracking his cell
phone position and relaying the information to Mrs. MacKenzie but was unable to do so.
Mrs. MacKenzie returned home after about half an hour and saw appellant being arrested
by sheriff’s deputies.
Several hours after appellant was arrested, Mr. Hatefi came to the MacKenzie
residence and told Mrs. MacKenzie that “he had a gun and mace at his front door.” He
said he was going to press charges against appellant for trying to run over Mrs. Hatefi
9
unless their attorneys sat down and reached a settlement. The MacKenzies installed
video surveillance cameras around their house because they were concerned about false
allegations against appellant. While appellant was incarcerated, the cameras recorded
Mr. Hatefi looking into appellant’s bedroom with binoculars. Mrs. MacKenzie obtained
a restraining order against Mr. Hatefi and Mr. Hatefi tried to obtain one against her.
On July 1, 2010, Mrs. MacKenzie was driving down the street when she saw
Mrs. Kordic and stopped to talk to her. Mrs. MacKenzie told Mrs. Kordic that she had
recently learned that for years Mr. Kordic had given threatening looks to her sons.
Mrs. MacKenzie demanded an explanation for Mr. Kordic’s behavior. Mrs. Kordic said
her husband did not do it.
Mr. Hatefi testified that when his wife returned home from grocery shopping she
told him that appellant drove his truck at her. At 1:56 p.m. on June 6, 2010, he called
9-1-1 and the operator told him that a unit was on the way because a neighbor had
previously called about a disturbance. Mr. Hatefi spoke to the first deputy who arrived
on the scene. After appellant was detained Mr. Hatefi was handcuffed and placed in a
police car because he responded to remarks made by appellant. On October 15, 2010,
Mr. Hatefi sent a letter to the attorney representing appellant and his parents. In the
letter, Mr. Hatefi said he would pursue legal options if the MacKenzies did anything to a
retaining wall between their properties. On January 6, 2011, Mr. Hatefi testified at
appellant’s bail hearing. He told the court that prior to appellant’s arrest on June 6, 2010,
Sean MacKenzie told the sheriff’s deputy that appellant was stealing from people,
painting people’s cars, throwing eggs at people’s houses, was a drug addict and a
criminal.
Sean MacKenzie was appellant’s younger brother by seven years. He testified to
the following: Prior to June 6, 2010, he had never spoken to Mr. Kordic but he had seen
Mr. Kordic give him and appellant “harassing looks” every time they went outside.
Appellant got very upset when Mr. Kordic stared at him. On June 6, 2010, at
approximately 1:00 p.m. Sean heard appellant and his parents arguing about appellant’s
car. He heard yelling but did not hear appellant direct any threats towards the Kordics
10
across the street. He saw appellant leave the house and start the pickup truck. When
Sean drove the pickup truck, it took approximately 25 seconds for the engine to turn over
and it tended to stall. It did not have power steering and was difficult to steer. Sean saw
the pickup truck stall in the driveway and saw appellant try to get the dog into the truck.
Mr. MacKenzie did not want appellant or the dog to leave and an argument ensued.
Appellant restarted the truck and Mrs. MacKenzie walked to her car. Sean went inside to
help his father track appellant.
About 15 to 20 minutes after appellant drove away in the truck, Sean saw sheriff’s
deputies speaking to Mr. Hatefi. Approximately 10 minutes later when appellant came
back to the house, Mr. Hatefi pointed to him and said, “There he is. Go arrest him.”
Appellant claimed he had been walking his dog and had done nothing wrong. He
attempted to come into his house but Mr. MacKenzie blocked the door because he did not
want the deputies entering his house with guns drawn. Appellant then told the deputies to
arrest him. When the dog started growling, appellant said, “What are you going to do?
Shoot my dog too? Go ahead.” Appellant told the sheriff’s deputy to shoot both
appellant and his dog. Sean denied telling the sheriff’s deputy that appellant was a drug
addict and a criminal or that he stole from people, painted people’s cars, or threw eggs at
their houses.
Deputy Jimenez testified that when he initially arrived at the scene he spoke with
the Kordics. Deputy Jimenez wrote in his report that Mr. Kordic told him that appellant
tried to hit Mrs. Hatefi with his pickup truck, but he did not think that Mrs. Kordic told
him that she saw Mrs. Hatefi almost get hit by appellant’s vehicle. Both Mr. and
Mrs. Kordic told Deputy Jimenez that appellant told Mr. Kordic he was going to kill
Mr. Kordic and his entire family by slashing their throats. Mr. Kordic informed Deputy
Jimenez that appellant had a violent temper and may be mentally unstable. Deputy
Jimenez also testified that Mrs. MacKenzie did not tell him she was a witness and saw
everything. He did not speak with appellant’s brother.
Appellant also offered the testimony of Dr. Ronald Markman, a psychiatrist, who
reviewed appellant’s medical history and evaluated him on June 21 and 28, 2011.
11
Dr. Markman opined that appellant had a bipolar disorder. Bipolar disorder involved
areas of dysfunction in thinking and emotion and is characterized by wide emotional
swings from a very low and depressed state to a very high happy state. Appellant tended
to downplay his psychiatric symptoms and Dr. Markman opined that when appellant was
in a stable state, he did not present a danger to himself or others and his potential for
aggression was no different than the average person.
Dr. Markman opined that on June 5, 2010, when appellant was taking photographs
of vandalism on his neighbor’s van he was suffering from a mental condition, most likely
bipolar disorder. The type of behavior described in the reports was indicative of the
manic or upper side rather than the down side. Dr. Markman opined that appellant was in
“a very highly agitative state” on June 6, 2010, when he left his residence in his pickup
truck. In such a state, appellant would not necessarily initiate violence but would respond
with violence if he felt threatened in his immediate environment. In Dr. Markman’s
opinion, appellant’s invitation to Deputy Moultrie to shoot appellant and his dog showed
impulsiveness and lack of consideration for the impact the statement might have on
people around him. Dr. Markham also reviewed the letter that appellant wrote to his
neighbor on July 17, 2010. Based on appellant’s statements that he was rich, owned
businesses around the world, and was going to marry his neighbor to whom the letter was
sent, Dr. Markham opined the letter reflected mental disturbance shown by appellant’s
misinterpretation and misimpression of events around him.
Dr. Markham opined that bipolar disorder does not “prevent intentional behavior.”
He stated that such intentional behavior would be considered “impulsive, unpredictable
and without thought to the consequences” because that does not enter the individual’s
thinking process. He concluded that appellant’s symptoms would not prevent him from
getting angry or acting on his anger.
Appellant did not testify at trial.
Prosecution Rebuttal Evidence
Immediately after appellant drove away from the Kordic’s residence on the
afternoon of June 6, 2010, Mrs. MacKenzie stopped by in her car and asked Mrs. Kordic,
12
“Are you guys okay?” Mrs. Kordic was crying and asked, “What’s going on? What
happened? What happened? What did we do? Why is he so upset?” Mrs. MacKenzie
said she did not know, was sorry and said, “He’s been mental since 2002.” She told
Mrs. Kordic that she was going to find him and talk to him and then drove away in the
same direction appellant had gone.
A few weeks later, Mrs. Mackenzie stopped by again at the Kordic residence. She
told Mrs. Kordic that she learned from appellant and Sean that Mr. Kordic had been “mad
dogging” appellant for two years. Mrs. Kordic stated her husband avoids conflict and it
was not in his nature to do something like that. Mrs. MacKenzie stated, “Well, you
know, you shouldn’t mad dog and you should never mad dog a mental person.”
DISCUSSION
I. No Prosecutorial Misconduct or Ineffective Assistance of Counsel Related to
Jury Voir Dire
A. Contention
Appellant contends that the prosecution committed misconduct by agreeing before
jury selection to exclude all evidence of mental illness and subsequently withdrew his
agreement after the jury was selected. As a result appellant contends he was denied a fair
trial because defense counsel did not voir dire the jury about possible bias against the
mentally ill. Appellant also contends he received ineffective assistance of counsel when
his attorney failed to question the prospective jurors about any bias they might have with
respect to mental illness.
B. Waiver
The People assert that appellant waived or forfeited any claim of prosecutorial
misconduct because he failed to raise the matter below. We agree. Here, the record
shows appellant did not make a timely and specific objection on the grounds of
prosecutorial misconduct to the conduct about which he now complains. The objection in
the trial court must be “on the same ground” as that asserted on appeal. (People v. Riggs
(2008) 44 Cal. 4th 248, 298.) Accordingly, appellant has forfeited his claim of
13
misconduct. Even assuming appellant had preserved his prosecutorial misconduct claim,
we address the contention and conclude it lacks merit.
C. Relevant Law
“‘Under California law, a prosecutor commits reversible misconduct if he or she
makes use of “deceptive or reprehensible methods” when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted.’” (People v. Fuiava
(2012) 53 Cal. 4th 622, 679.) “To constitute a violation under the federal Constitution,
prosecutorial misconduct must ‘so infect[] the trial with unfairness as to make the
resulting conviction a denial of due process.’ [Citations.]” (People v. Valdez (2004) 32
Cal. 4th 73, 122.) “A prosecutor’s misconduct that does not render a trial fundamentally
unfair nevertheless violates California law if it involves ‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’ [Citations.]”
(People v. Cole (2004) 33 Cal. 4th 1158, 1202.)
D. Background
Prior to trial, the prosecution filed a motion to exclude and limit defense
psychiatric evidence. Specifically, the prosecution sought to preclude appellant from
offering any evidence in the guilt phase at trial regarding his lack of capacity or ability to
control his conduct. At an Evidence Code section 402 hearing on the morning of the first
day of trial, defense counsel acknowledged that evidence of diminished capacity was
inadmissible and counsel did not “intend to introduce any mental illness evidence.”
Counsel added that “diminish actuality” was not appellant’s defense but if a door opened
“through the witnesses or regarding mental illness at that point in time, [appellant’s]
position may change” and the defense might bring in evidence of diminished actuality.
Defense counsel indicated that it was not planning on having its expert psychiatrist
“testify at all because our position is different than a mental illness defense.”
The prosecution indicated that there was “no issue” with respect to the motion to
exclude and limit Dr. Markham’s testimony if defense counsel represented that
Dr. Markham was not going to testify and the defense was not going to raise a mental
14
illness defense. However, the prosecution was unclear on what constituted “opening the
door” and asked if Dr. Markham would be called if a prosecution witness testified that he
or she was afraid of appellant because he or she thought appellant was “crazy.” Defense
counsel asked that the trial court instruct the prosecution’s witnesses not to address
mental illness in their testimony.
Defense counsel argued that the letter appellant wrote and sent to a neighbor
constituted evidence of mental illness and the defense would call Dr. Markham to testify
if the letter was admitted into evidence. The trial court ruled that three statements
contained in the letter selected by the prosecution were admissible. The court stated that
those statements did not “open the door” to present evidence of mental illness because the
specific statements did not mention mental illness. Defense counsel agreed that such
limited evidence of the letter did not give rise to an inference of mental illness and again
confirmed that the defense did not intend to present any evidence on that issue. Referring
to mental illness, the court stated, “At this time any evidence of that is excluded.” The
prosecution noted that the issue of mental illness may come up because there was
evidence that appellant’s mother had spoken to the victims, apologized for appellant’s
actions, and explained that appellant had mental issues. The court asked both sides to tell
their witnesses not to go into the area of mental illness. The prosecution stated, “We may
revisit that, your Honor, just depending on what the testimony . . . .”
After the jury was selected, but before opening statements, the prosecution
referenced the earlier discussions and the trial court’s ruling regarding mental illness and
stated he was bringing the issue up because “it relates to the fear of the victims and it’s in
some commentary in the recordings that will be introduced.” The prosecution explained
that the victims related in the 9-1-1 calls that they believed appellant to be mentally ill.
That testimony was relevant to establish the sustained fear element of section 422.
Defense counsel stated that if the prosecution presented such evidence, the defense would
call Dr. Markham to testify that appellant suffered from a mental illness, and that
appellant’s mental illness would not cause him to be violent. Defense counsel stated that
appellant’s mental illness was part of the defense because appellant’s mother would
15
testify that appellant’s family took his car away and she followed him out the door
because of his mental illness. The trial court ruled that Dr. Markham could testify that
appellant was suffering from mental illness and was delusional when he wrote and sent
the letter to his neighbor and could also testify on certain other mental illness issues.
In his opening statement, the prosecution stated that there may be testimony that
appellant had “some type of mental condition, which makes him not a violent person.”
He urged the jurors to listen to that evidence and all the evidence presented during the
course of the trial. Defense counsel referred extensively to mental illness in her opening
statement. She stated that appellant suffered from and struggled with bipolar disorder.
She stated the evidence would show that the victims were aware appellant was mentally
ill and that created an “environment of hostility and concern and fear” of what appellant
might do to them. She stated the Kordics’ account of the incident was fabricated based
on their unreasonable fear of and prejudice against appellant because he was mentally ill.
In closing argument, the prosecution stated that the case was not about insanity.
He acknowledged that evidence of mental illness was relevant to whether appellant had
the specific intent required for the criminal threats in counts 2 and 4, but urged the jury to
find appellant did intend the threats by focusing on the words appellant used. Defense
counsel argued the case was “about prejudice towards the mentally ill.” She argued the
victims lied because “they wanted the crazy guy out of the neighborhood.” She
concluded her argument stating, “[T]his is weak evidence and our nation protects the
innocent. Our nation protects the mentally ill[]. The mentally ill have rights.”
At the hearing on appellant’s motion for new trial, defense counsel argued that she
did not voir dire the jury on issues of mental illness to determine if the jurors were
prejudiced because the prosecution had agreed he would not bring up any evidence of
mental illness. The prosecution stated that when the issue was first discussed he had
questioned the circumstances under which the door would be opened to allow evidence of
mental illness. He notified defense counsel on the day following voir dire that
appellant’s mental illness would be mentioned in the 9-1-1 calls and was relevant to
whether the victims were in fear. Counsel requested and was given permission to call
16
Dr. Markham to testify. The trial court inquired if counsel believed the verdict would
have been different had the jurors been asked about their feelings on mental health.
Defense counsel stated her belief that evidence of mental illness had a strong impact on
the jurors’ opinion of appellant because he did not testify. The prosecution stated that
mental health was sufficiently presented by counsel through Dr. Markham’s testimony,
and the ultimate question was whether the jurors could be fair and impartial, and all of
them confirmed during voir dire that they would be. The trial court denied appellant’s
motion for new trial.
E. Analysis
Appellant’s contention that there was prosecutorial misconduct is predicated on
the assumption that there was an agreement by the prosecution that he would exclude or
not bring up any evidence of mental illness. An examination of the record shows there
was no such agreement.
At the hearing on the prosecution’s pretrial motion to limit defense psychiatric
evidence, defense counsel indicated that it was not presenting a mental illness defense
and did not intend to have Dr. Markham testify. The prosecution stated that under those
circumstances there was no issue remaining with respect to the motion. The prosecution
did not enter into any agreement that he would not bring up any evidence of mental
illness as the motion and hearing at that point concerned Dr. Markham’s testimony only.
The prosecution asked for clarification of defense counsel’s remark that Dr. Markham
might testify if the door was opened through other witnesses. The prosecution
specifically asked about a situation where a witness was afraid of appellant because they
believed he was mentally ill. The prosecution’s concern was not directly addressed. The
trial court and both parties then engaged in a discussion concerning the admissibility of
portions of a letter appellant wrote and sent to a neighbor. When defense counsel again
reiterated that the defense did not intend to present evidence of mental illness, the court
stated, “At this time any evidence of [mental illness] is excluded.” The prosecution did
not enter into any agreement at this time to exclude evidence of mental illness and noted
there was evidence that appellant’s mother spoke to the victims, apologized for
17
appellant’s behavior and explained that appellant had mental issues. When the court
instructed both sides at defense counsel’s request to tell their witnesses not to go into the
area of mental illness, the prosecution again made it clear that the issue may have to be
revisited depending on how the testimony developed at trial.
Appellant repeatedly refers to an agreement2 by the prosecution to exclude
evidence of mental illness without any support in the record. It is clear from the
transcript of the discussions that the prosecution had concerns regarding the court’s
instruction on mental illness. It is not plausible that the prosecution would have entered
into an agreement to exclude all evidence of mental illness prior to jury voir dire when he
had raised the issue with the court moments earlier and it had not been addressed to his
satisfaction. The prosecution did not attempt to deceive defense counsel regarding
evidence of mental illness and sought no restriction on defense counsel’s right to voir dire
the jury on that issue. Likewise, the trial court placed no restriction on the parties’ voir
dire on mental illness. Because there was no agreement to exclude evidence of mental
illness, there could be no breach of that agreement by the prosecution, and therefore no
prosecutorial misconduct.
Appellant’s ineffective assistance of counsel claim also fails because he cannot
demonstrate it is reasonably probable he would have obtained a better result at trial if his
counsel had questioned the prospective jurors about mental illness. To prevail on an
ineffective assistance of counsel claim, the appellant must establish two things:
(1) counsel’s performance fell below an objective standard of reasonableness, and
(2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687;
People v. Hernandez (2012) 53 Cal. 4th 1095, 1105.) The Strickland court explained
prejudice is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland v. Washington, supra, at
2 In appellant’s motion for new trial, appellant refers to the “prosecutor’s
stipulation” to exclude evidence of mental illness prior to jury selection.
18
p. 694.) Further, the high court stated a reasonable probability is “a probability sufficient
to undermine confidence in the outcome” of the proceeding. (Ibid.)
First, appellant’s counsel was aware that mental illness was an issue in this case
because she retained a psychiatric defense expert. In opening statement she indicated that
appellant suffered from and struggled with a longstanding mental illness. She presented
extensive evidence of appellant’s mental illness through Dr. Markham. A central theme
of her closing argument was that the case was about prejudice towards the mentally ill,
and the victims in this case had an unreasonable fear of, and were prejudiced against
appellant for being mentally ill. Counsel could reasonably have concluded that it was not
necessary to question the prospective jurors about mental illness. (People v. Jones (2003)
29 Cal. 4th 1229, 1254 [““‘Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel”’”].)
Second, appellant has not established a “‘reasonable probability that, but for
counsel’s [decision] the result of the proceeding would have been different.’ [Citation.]”
(People v. Nguyen (2010) 184 Cal. App. 4th 1096, 1122, fn. omitted.) Each of the jurors
was asked whether they could be fair and impartial and all of the jurors confirmed that
they would be. The trial court admonished the jurors not to let bias, prejudice, or public
opinion influence their decision, and that bias included bias for or against appellant based
on disability. We presume the jurors followed the trial court’s instructions. (See People
v. Frank (1990) 51 Cal. 3d 718, 728 [“the general rule is that on appeal we must assume
the jury followed the court’s instructions and admonitions”].) The question to be
determined was whether appellant committed the charged acts and the case came down to
a credibility contest between the victims and Mrs. MacKenzie. The victims testified they
were threatened and assaulted by appellant. Mrs. MacKenzie testified she followed
closely behind appellant’s truck and appellant neither stopped at the Kordic residence nor
drove the truck at Mrs. Hatefi. The jury rejected appellant’s version of events presented
by his mother. There was no evidence that any juror harbored a bias against the mentally
ill and appellant fails to show how a different outcome would have resulted had the jurors
been questioned on that subject.
19
Appellant also suggests his counsel was ineffective because she failed to move for
a mistrial on the grounds of prosecutorial misconduct when the prosecution breached his
agreement to exclude evidence of mental illness. As explained above, there was no
agreement and counsel could thus reasonably conclude that a motion for mistrial on that
ground was not warranted or likely to succeed.
Appellant counsel’s tactical decisions do not constitute deficient performance and
appellant has failed to show that counsel provided ineffective assistance.
II. The Trial Court Did Not Err, Prejudicially or Otherwise, in Permitting the
Prosecution to Present Rebuttal Evidence and Precluding the Defense from
Presenting Surrebuttal Evidence
Appellant contends the trial court erred by allowing testimony by Mrs. Kordic to
rebut testimony by Mrs. MacKenzie. Appellant further contends the trial court erred in
preventing defense counsel from presenting evidence in surrebuttal.
A. Background
During the prosecution’s case-in-chief, Mrs. Kordic testified that on the day of the
incident Mrs. MacKenzie stopped in front of the Kordics’ house and spoke with her
before driving away in the same direction as appellant. Mrs. MacKenzie testified during
the defense case that she did not stop and have a conversation with Mrs. Kordic on
June 6, 2010, and did not tell her that appellant had mental illness problems. After the
defense rested, the prosecution indicated he would call Mrs. Kordic to rebut
Mrs. MacKenzie’s testimony. Appellant’s counsel objected on the grounds the testimony
was “[c]umulative and redundant” because Mrs. Kordic had “already testified to that.”
The court ruled the testimony would be allowed, but each party would have five minutes
to conduct its examination. Mrs. Kordic testified about the substance of two
conversations with Mrs. MacKenzie. The first occurred on June 6, 2010, shortly after
appellant drove away. She testified that Mrs. MacKenzie apologized for appellant’s
behavior and said he suffered from mental illness since 2002. The second conversation
occurred a few weeks later and Mrs. Kordic testified that Mrs. MacKenzie accused
Mr. Kordic of “mad dogging” appellant and his brother. Appellant’s counsel indicated
20
the defense had a rebuttal witness based on Mrs. Kordic’s testimony. The trial court
denied appellant counsel’s request and stated, “There’s no rebuttal to the rebuttal. So we
are done.” A discussion took place regarding jury instructions and after a brief recess the
jury was instructed and closing arguments were presented.
B. Applicable Law
The trial court has broad discretion to limit the scope of evidence offered in
rebuttal to prevent unnecessary repetition of matters that should have been sufficiently
covered in the original case. (§ 1093, subd. (d); see also § 1044 [authorizing trial court to
“control all proceedings” and “to limit the introduction of evidence and the argument of
counsel to relevant and material matters, with a view to the expeditious and effective
ascertainment of the truth regarding the matters involved”]; see also People v. Lamb
(2006) 136 Cal. App. 4th 575, 582 [“trial judge may limit scope of surrebuttal evidence to
prevent repetition of matter that should have been covered in the original case or to
prevent unfairness to the other party”].) The decision whether to admit on rebuttal
testimony that could have been presented in the party’s case-in-chief is reviewed for
abuse of discretion. (People v. DeSantis (1992) 2 Cal. 4th 1198, 1232; see generally
People v. Alvarez (1996) 14 Cal. 4th 155, 201 [trial court’s discretion in admitting or
excluding evidence is reviewable for abuse and will not be disturbed on appeal except
upon a showing that decision was arbitrary, capricious or patently absurd and resulted in
manifest miscarriage of justice].) The trial court has no discretion to admit irrelevant
evidence. (Evid. Code, § 350; People v. Derello (1989) 211 Cal. App. 3d 414, 425–426.)
C. Analysis
To determine whether there was an abuse of discretion, we address two factors:
(1) whether Mrs. Kordic’s testimony that Mrs. MacKenzie did stop and tell her that
appellant had mental illness problems satisfied the “relevancy” requirement set forth in
21
Evidence Code section 210, 3 and (2) if the evidence was relevant, whether the trial court
abused its discretion under Evidence Code section 3524 in finding that the probative
value of the testimony outweighed its prejudicial effect. (People v. Heard (2003) 31
Cal. 4th 946, 972.)
We find no abuse of discretion in the trial court’s decision to permit Mrs. Kordic’s
testimony because it was relevant to witness credibility issues. (Evid. Code, §§ 210,
350.) Mrs. MacKenzie testified that she followed inches behind the truck appellant was
driving, that she did not stop and talk to Mrs. Kordic, and she did not tell Mrs. Kordic
that appellant had mental illness problems. Mrs. Kordic’s testimony was relevant to the
jury’s evaluation of which witnesses were lying and which were telling the truth. The
testimony was also relevant to the jury’s determination of whose account of the incident
was credible which was probative of the ultimate question of appellant’s guilt.
Mrs. Kordic’s rebuttal testimony was not cumulative because she did not testify to
the substance of the conversations in the prosecution’s case-in-chief. The considerable
probative value of the evidence outweighed any minimal undue prejudice related to
appellant’s mental illness because the jury had heard extensive evidence about
appellant’s mental illness during the defense case. The trial court’s decision to permit the
rebuttal testimony was not arbitrary, capricious or patently absurd, nor did it result in a
miscarriage of justice.
Appellant contends the trial court’s authority to prevent repetition of matters that
should have been presented in the case-in-chief should apply to rebuttal evidence only,
and not surrebuttal. The trial court’s decision to exclude appellant’s surrebuttal evidence
3 Evidence Code section 210 provides in pertinent part: “‘Relevant evidence’
means evidence . . . having any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.”
4 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
22
in this case was not an abuse of discretion. The court was concerned about repetition of
matter already presented and the undue consumption of time it would necessitate.
Although appellant’s counsel did not identify the surrebuttal witness it intended to call,
the circumstances of the conversation indicate that appellant’s counsel would have called
Mrs. MacKenzie, who had already testified to her account. Any such additional
testimony necessarily “would have been repetitive and time consuming in an already
lengthy and, at times, tedious trial.” (People v. Lamb, supra, 136 Cal.App.4th at p. 582.)
We also reject appellant’s related contention that the exclusion of his surrebuttal
evidence deprived him of his constitutional right to present a defense. (See People v.
Boyette (2002) 29 Cal. 4th 381, 427–428 [“‘[a]s a general matter, the [proper]
“[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a
defendant’s right to present a defense”’”].)
III. Trial Court Had No Duty to Give Unanimity Jury Instruction
Appellant contends that the trial court erred in failing to instruct the jury sua
sponte with the unanimity instruction on counts 2 and 4, to ensure that all the jurors
agreed on the specific threats that constituted the offenses because there were a number
of acts alleged by the prosecution from which the jury could have found that appellant
was guilty of criminal threats. Specifically appellant contends some of the jurors may
have believed that appellant committed the offenses of criminal threats by threatening the
Kordics from inside his parents’ house, whereas other jurors may have believed the
threats occurred when he stopped the truck in front of the Kordics’ house.
“When an accusatory pleading charges the defendant with a single criminal act,
and the evidence presented at trial tends to show more than one such unlawful act, either
the prosecution must elect the specific act relied upon to prove the charge to the jury, or
the court must instruct the jury that it must unanimously agree that the defendant
committed the same specific criminal act.” (People v. Melhado (1998) 60 Cal. App. 4th
1529, 1534.)
“The unanimity requirement is constitutionally rooted in the principle that a
criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a
23
reasonable doubt, as to each count charged.” (People v. Brown (1996) 42 Cal. App. 4th
1493, 1499–1500; see Cal. Const., art. I, § 16.) Even when the defendant does not
request a unanimity instruction, “such an instruction must be given sua sponte where the
evidence adduced at trial shows more than one act was committed which could constitute
the charged offense, and the prosecution has not relied on any single such act.” (People
v. Dieguez (2001) 89 Cal. App. 4th 266, 274–275.)
This was not a case in which the prosecution asked the jurors to select from among
several discrete acts by appellant in order to convict him on counts 2 and 4. Contrary to
appellant’s contention, the record shows that the prosecution made the required election
and clearly informed the jury in opening and closing argument that he was relying on the
threat appellant made when he stopped the truck in front of the Kordic house, looked at
Mr. Kordic, and said he was going to kill the whole Kordic family and slash their throats.
The prosecution began his closing argument by explaining that appellant committed the
charged criminal threats when he “drove his truck across the street, yelled out the
window that he was going to kill Monica and Pete Kordic by slicing their throats and
their family’s throats.” The prosecution concluded his closing argument by stating that
appellant “threatened to kill Monica and Pete Kordic on June 6 of last year; and that after
that, he drove off and he drove his car at Mrs. Hatefi.”
The threats shouted from inside appellant’s parents’ house were never definitively
attributed to appellant and the prosecution stated in opening argument that the Kordics
were not frightened at that point. The prosecution argued that the element of reasonable
sustained fear necessary for the charged crimes of criminal threats arose when appellant
drove across the street and yelled that he was going to kill the Kordics and slash their
throats.
Because the prosecution communicated to the jury the pertinent threat it was
relying on to prove counts 2 and 4, a unanimity instruction was not required and the court
had no sua sponte duty to so instruct.
24
IV. No Error in Limitation of Closing Argument
Appellant contends the trial court abused its discretion by imposing a time limit on
the defense’s closing argument and in so doing violated his constitutional right to due
process. Appellant also contends the trial court gave the jury the impression that defense
counsel’s argument was not important by announcing when five minutes and one minute
remained. Appellant’s claim fails because the trial court’s limitation was reasonable
under the circumstances.
On September 14, 2011, during the presentation of the defense case, the trial court
admonished Mr. Hatefi to answer the questions asked of him without unnecessary
elaboration. Before recommencing testimony the court held an in-chambers conference
with counsel. The court was concerned because the case was “dragging on” and told
counsel to be more precise with their questions and move on. The court stated that it was
“not going to have a lot of leeway with either side anymore” and stated its intention to
impose time limits. Before trial recommenced the following day, the court informed
counsel that the trial was to be completed that day. A discussion took place regarding
jury instructions and time estimates were given for the upcoming testimony from
Dr. Markham and the rebuttal witness. The court informed the parties that they would
have whatever time remained after the jury was instructed for closing arguments.
Just before it read the instructions to the jury, the court commented, “This trial will
be over today so whatever time is left after the instructions we will have closing
arguments.” Prior to the prosecution commencing his closing argument the court advised
him that he had a total of 17 minutes to be used for closing and rebuttal arguments. The
prosecution asked the court to advise him before he completed ten minutes of his allotted
time. The prosecution presented his closing argument and appellant’s counsel followed.
During appellant counsel’s closing argument the court advised her when she had five
minutes left, and again when she had one minute left. The prosecution then presented his
rebuttal argument.
Appellant raised this issue in a motion for new trial, which the trial court denied.
Appellant complained that she did not have sufficient time to present closing argument.
25
Specifically she argued that she did not have the opportunity to address the elements of
the offenses or the impact of the mental illness evidence and Deputy Huerta’s testimony.
The prosecution stated the issues of the case were not complicated and the amount of
time allocated by the court was adequate to review the evidence and present argument.
The court noted that the jury knew the elements of the offenses because it was part of the
jury instructions which were not complicated. The court explained that it did not
arbitrarily set a time limit on closing arguments but did so to ensure the trial could be
completed that day. The court noted that it had allowed counsel to examine the witnesses
at length to establish all of the facts and that he had advised the parties of his intent to
limit arguments.
“It shall be the duty of the judge to control all proceedings during the trial, and to
limit the introduction of evidence and the argument of counsel to relevant and material
matters, with a view to the expeditious and effective ascertainment of the truth regarding
the matters involved.” (§ 1044.) Although a criminal defendant has a constitutional right
to have counsel present closing argument to the trier of fact, section 1044 gives the trial
court discretion to set reasonable time limits on such argument. (People v. Benavides
(2005) 35 Cal. 4th 69, 110.) We uphold a trial court’s determinations under section 1044
unless the court patently abused its discretion. (People v. Calderon (1994) 9 Cal. 4th 69,
79.)
The record indicates the trial court acted within its broad discretion in setting a
reasonable time limit for the parties’ closing arguments. The evidence was not lengthy or
complicated, nor were the jury instructions. (See People v. Mendosa (1918) 178 Cal.
509, 510 [“‘there was no error committed in limiting defendant’s argument to fifteen
minutes in view of the small number of witnesses examined and the brevity of their
testimony’”].) The parties were made aware of the court’s frustration with the pace of the
trial and had been informed on the day prior to closing arguments that the court intended
to impose time limits. Furthermore the court did not arbitrarily pick a time limit but
26
informed the parties that the time remaining after the jury had been instructed would be
divided equally5 between counsel to ensure the trial concluded on that same day.
Reminding a lawyer of his time limit is a common function of the trial court
within its power to manage the trial. (Nazir v. United Airlines, Inc. (2009) 178
Cal. App. 4th 243, 289–290 [reminding and encouraging the trial court to use its inherent
power to exercise control over all proceedings connected with the litigation before it].)
We see no evidence the jury got the impression that the trial court minimized the
importance of defense counsel’s argument. The trial court’s reminders of the time
remaining were done for appellant counsel’s benefit so that she could focus her argument
on the issues that were important. Likewise, appellant’s claim that the time limits
imposed on his closing argument infringed upon his federal and state constitutional rights
to due process, counsel, and a fair trial fail because, as we have concluded, the court did
not err. (People v. Benavides, supra, 35 Cal.4th at p. 111.)
Finally, appellant’s ineffective assistance of counsel claim based on his trial
counsel’s failure to object to the amount of time given to her for closing argument, and
failure to argue for more time, fails. In light of the court’s strong admonitions to counsel
regarding the pace of the trial, any objections by appellant’s trial counsel would have
been overruled by the trial court. Furthermore, a review of the defense closing argument
indicates counsel addressed the jury instructions, the elements of the offenses, Deputy
Huerta’s testimony, and mental illness. There is no reason to believe any longer
argument would have done anything to change the jury’s verdicts. Appellant has failed
to show a reasonable probability that, but for trial counsel’s lack of objection or request
for more time, appellant would have obtained a more favorable result. (People v.
Blankenship (1959) 171 Cal. App. 2d 66, 82.)
5 The prosecution’s closing argument and rebuttal was contained in approximately
11 pages of reporter’s transcript; defense counsel’s argument was contained in
approximately 14 pages.
27
V. Substantial Evidence Supports Appellant’s Convictions on Counts 1, 3, and 4
Appellant contends the evidence was insufficient to sustain the convictions. We
disagree.
When an appellant challenges the sufficiency of the evidence to support a
conviction, “we review the entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable, credible, and of solid value
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal. 4th 297, 331.) We “‘“presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.””’ (People v. Davis (1995) 10 Cal. 4th 463, 509.) We draw all reasonable
inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal. 3d 1210,
1237.) “An inference is not reasonable if it is based only on speculation.” (People v.
Holt (1997) 15 Cal. 4th 619, 669.)
The same standard applies when the conviction rests primarily on circumstantial
evidence. (People v. Perez (1992) 2 Cal. 4th 1117, 1124.) Evidence of a defendant’s
state of mind is almost inevitable circumstantial, but circumstantial evidence is as
sufficient as direct evidence to support a conviction. (People v. Bloom (1989) 48 Cal. 3d
1194, 1208.) A jury may infer a defendant’s mental state from all of the facts and
circumstances shown by the evidence, including the circumstances attending the act, the
manner in which it is done, and the means used, among other factors. (§ 21, subd. (a);
People v. Lindberg (2008) 45 Cal. 4th 1, 27.) If the evidence justifies a reasonable
inference that the requisite state of mind existed, the verdict may not be disturbed on
appeal. (People v. Holt, supra, 15 Cal.4th at p. 670.) Applying this standard, appellant’s
arguments fail to persuade us that reversal of the convictions is warranted.
28
A. Count 1–Assault with a Deadly Weapon Against Mrs. Hatefi
1. Relevant Authority
Section 245, subdivision (a)(1) punishes assaults committed “with a deadly
weapon or instrument other than a firearm.”6 Whether or not the victim is injured is
immaterial because the statute focuses on use of a deadly weapon or instrument or,
alternatively, on force likely to produce great bodily injury. (People v. Aguilar (1997) 16
Cal. 4th 1023, 1028.) A deadly weapon within the meaning of section 245,
subdivision (a)(1) is “‘any object, instrument, or weapon which is used in such a manner
as to be capable of producing and likely to produce, death or great bodily injury.’”
(Aguilar, supra, at pp. 1028–1029, 1037.)
An assault occurs whenever the defendant’s act “by its nature will probably and
directly result in injury to another, i.e., a battery. . . . Because the offensive or dangerous
character of the defendant’s conduct, by virtue of its nature, contemplates such injury, a
general criminal intent to commit the act suffices to establish the requisite mental state.”
(People v. Colantuono (1994) 7 Cal. 4th 206, 214–215; see also People v. Williams (2001)
26 Cal. 4th 779, 790.)
2. Analysis
Appellant contends the evidence was insufficient to prove the element of general
intent. He argues that his conduct was at worse “mere recklessness” and no motive was
shown for appellant to run over Mrs. Hatefi. The People were not required to prove a
motive. The People established that appellant “willfully committed an act that by its
nature will probably and directly result in injury to another” (People v. Colantuono,
supra, 7 Cal.4th at p. 214), with “actual knowledge of those facts sufficient to establish
that the act by its nature will probably and directly result in the application of physical
6 “(a)(1) Any person who commits an assault upon the person of another with a
deadly weapon or instrument other than a firearm shall be punished by imprisonment in
the state prison for two, three, or four years, or in a county jail for not exceeding one
year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.” (§ 245, subd. (a)(1).)
29
force against another” (People v. Williams, supra, 26 Cal.4th at p. 790). The evidence
met those requirements. It showed that appellant drove his truck across to the opposite
side of the street where Mrs. Hatefi was walking. Mrs. Hatefi saw appellant steer the
truck with his right hand and extend his left arm out the window with his middle finger
extended. The truck came close enough to Mrs. Hatefi that she was forced to jump out of
its way. Mrs. Kordic testified the truck came within two feet of Mrs. Hatefi. Appellant
has not established that a rational trier of fact could not have found him guilty of assault
with a vehicle based on the foregoing evidence.
B. Count 3–Failure to Care for an Animal
1. Relevant Authority
Section 597f provides in pertinent part: “(a) Every owner, driver, or possessor of
any animal, who permits the animal to be in any building, enclosure, lane, street, square,
or lot, or any city, city and county, or judicial district, without proper care and attention,
shall, on conviction, be deemed guilty of a misdemeanor.” A conviction under
section 597f requires proof of criminal negligence. (People v. Speegle (1997) 53
Cal. App. 4th 1405, 1415.) “‘[A]n act is criminally negligent when a man of ordinary
prudence would foresee that the act would cause a high degree of risk of death or great
bodily harm.’” (People v. Villalobos (1962) 208 Cal. App. 2d 321, 327.)
2. Analysis
The evidence showed that appellant returned to the neighborhood accompanied by
his unleashed dog after the sheriff’s deputies had responded to the 9-1-1 calls from
Mrs. Kordic and Mr. Hatefi. Appellant continued walking down the street after Deputy
Moultrie called out to him and ordered him to stop. Appellant looked in Deputy
Moultrie’s direction but continued walking. Deputy Moultrie approached appellant and
in a louder tone of voice again ordered him to stop. As appellant turned to face Deputy
Moultrie his large “shepherd-type” dog barked, growled, and displayed his teeth in a
vicious manner towards Deputy Moultrie. Deputy Moultrie feared for his safety. He
drew his weapon and ordered appellant to secure the dog. Appellant did not secure the
30
dog and told Deputy Moultrie to “go ahead and shoot the dog.” The dog continued to
bar, growl, and “display[] a vicious face, teeth and all.”
Appellant cites to a number of cases that have dealt directly with section 597f and
argues that they involved severe neglect resulting in harm. Appellant argues that since
his dog was not injured as a result of his failure to secure it, he did not violate the statute.
Appellant is mistaken. The evidence showed that appellant did not display the “proper
care and attention” necessary to prevent foreseeable harm to his dog. Appellant’s family
members had to come outside and secure the dog.
We do not agree with appellant’s contention that it is “absurd” to conclude that
there was “a high risk that a peace officer would have shot a family dog, a pet, in front of
the family’s home, in the middle of the afternoon, in the presence of several neighbors, if
the dog continued to bark and growl and bare its teeth at the officer . . . .” The jury could
reasonably find that appellant permitted his dog to be on the street without proper care
and attention, and that his act of refusing to secure the dog while a police officer fearing
for his safety pointed a loaded weapon at the dog caused a high degree of risk of death or
great bodily harm to the dog.
C. Count 4–Criminal Threat Against Mrs. Kordic
1. Relevant Authority
Under 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.’ [Citations.]” (In re
George T. (2004) 33 Cal. 4th 620, 630.)
31
“‘Section 422 [may be] violated . . . when such a threat is communicated by the
threatener to a third party and by him conveyed to the victim . . . .’ [Citation.]” (People
v. Felix (2001) 92 Cal. App. 4th 905, 911.) “Where the threat is conveyed through a third
party intermediary, the specific intent element of the statute is implicated. Thus, if the
threatener intended the threat to be taken seriously by the victim, he must necessarily
have intended it to be conveyed.” (In re David L. (1991) 234 Cal. App. 3d 1655, 1659.)
2. Background
The evidence showed that on the night of June 5, 2010, appellant was on the street
outside the Kordic residence taking photographs of Mr. Kordic’s work van that had been
vandalized. Camera flashes observed by the Kordics while they were talking to Deputy
Huerta indicated that appellant was observing them from his house up the street. The
following day both Mr. and Mrs. Kordic heard a male voice yelling that he was going to
“kill them all.” The voice came from appellant’s house and was angry because someone
had called the “fucking police” on him. Mrs. Kordic was “very concerned” that the
threats were “geared and directed directly toward” her family because the Kordics had
called the police the previous night. Shortly afterwards, Mrs. Kordic watched from her
front porch as appellant approached Mr. Kordic who was in the Kordic’s driveway. She
saw appellant yell at her husband and make a motion with his hand across his throat.
Mr. Kordic related to Mrs. Kordic that appellant said he was going to kill the entire
Kordic family.
3. Analysis
Appellant contends the evidence was insufficient to prove that he intended that
Mr. Kordic would convey to Mrs. Kordic his threat to kill the entire Kordic family. If the
communication is with a third party as it was here, then it must be shown that appellant
intended that the threat be conveyed to Mrs. Kordic. (In re David L., supra, 234
Cal.App.3d at p. 1659.) Such specific intent can be inferred from the circumstances.
(Ibid.)
Here, Mrs. Kordic was watching from her front porch and a jury could infer that
appellant saw Mrs. Kordic as he made the threat and intended that Mr. Kordic
32
communicate it to her. The circumstances and manner in which the threat was made also
supports the inference that appellant intended that Mr. Kordic act as an intermediary to
convey the threat to Mrs. Kordic. Appellant had been questioned the previous night by
Deputy Huerta about the vandalism to Mr. Kordic’s work van, and had seen Deputy
Huerta talking to Mr. and Mrs. Kordic on the street outside their home. Moments before
appellant stopped in front of the Kordic’s house and threatened them, a voice from
appellant’s house was heard swearing loudly and complaining that someone had called
the police on him.
Furthermore, in In re David L., the defendant knew the third party would convey
the threat to the victim because the victim and the third party were friends, and the
prosecution proved the third party actually informed the victim of the defendant’s
remarks. (In re David L., supra, 234 Cal.App.3d at p. 1658.) Here, it can be inferred that
appellant knew Mr. Kordic would convey the threat to Mrs. Kordic because she was his
wife, and the prosecution here also proved through Mrs. Kordic’s testimony that
Mr. Kordic actually conveyed the threat to her.
There is no evidence to support appellant’s contention that “the mention by
appellant of Mr. Kordic’s whole family was simply an attempt by appellant to deepen the
effect of his statement on Mr. Kordic himself.” The evidence shows that appellant’s
words and accompanying slashing of the throat motion were carefully chosen and
intended to convey a specific threat. We may not reweigh the evidence nor reassess the
credibility of the witnesses. (People v. D’Arcy (2010) 48 Cal. 4th 257, 293.)
VI. Appellant was Properly Convicted on Counts 2 and 4
Appellant contends that he could not lawfully be convicted of count 4 (criminal
threat against Mrs. Kordic) in addition to count 2 (criminal threat against Mr. Kordic)
because “[t]he mere fact that appellant . . . told Mr. Kordic that he was going to kill him
and his whole family should not result in an additional charge and conviction . . . with
Mrs. Kordic as a victim.” Appellant contends “the judgment should be reversed as to
count 4.”
33
The evidence shows that appellant directly threatened Mr. Kordic (count 2) and
the jury found him guilty. Appellant does not challenge the sufficiency of the evidence
on that count. For the reasons stated in part V.C. above, we find substantial evidence
supports the jury’s verdict on count 4, i.e. that appellant intended his threat to be
conveyed to Mrs. Kordic by Mr. Kordic. Therefore, his convictions of both counts 2 and
4 were proper.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
34