People v. Marcus CA2/6

Filed 12/7/20 P. v. Marcus CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B297241
(Super. Ct. No. 2015022064)
Plaintiff and Respondent, (Ventura County)
v.
DANIEL JOHN MARCUS,
Defendant and Appellant.
Daniel John Marcus appeals his conviction, by jury, of
inflicting corporal injury on a co-habitant (Pen. Code, §273.5,
subd. (a)),1 dissuading a witness (§ 136.1, subd. (c)(1)), and false
imprisonment by violence. (§ 236.) The jury found that appellant
inflicted great bodily injury on the victim, Krysta W. (§ 12022.7,
subd. (e)), but found not true an enhancement allegation that he
used a deadly weapon to dissuade a witness. (§ 12022, subd.
(b)(1).) Appellant was found not guilty on a charge of exhibiting a
All further statutory references are to the Penal Code
1
unless otherwise stated.
deadly weapon. (§ 417, subd. (a).) The jury was unable to reach a
verdict on the charge that appellant made criminal threats.
(§422.) The trial court sentenced appellant as a third strike
offender to state prison for a term of 25 years to life for the
corporal injury offense (§273.5) and four years for the false
imprisonment offense. (§236.) It struck enhancements for
appellant’s prior serious felony convictions (§ 667), and prior
prison terms. (§ 667.5.) Finally, the trial court ordered appellant
to pay victim restitution of $13,445.40 and other fines and fees.
Appellant contends the trial court erred when it allowed
the prosecution to introduce evidence of his violent acts against
Jennifer B., with whom appellant lived, and Kaci A., a woman he
had dated. He further contends the evidence was insufficient to
establish that he inflicted great bodily injury on the victim,
Krysta W. Appellant contends the trial court erred at sentencing
when it declined to strike either of his prior convictions and when
it imposed victim restitution without sufficient evidence of the
victim’s damages and without affording appellant a hearing to
contest those damages. We affirm.
FACTS
In 2015, Krysta W. lived in a Ventura apartment with her
10-year old son, and appellant, who had been her boyfriend for
about three years. The couple had a volatile relationship and
argued frequently. Appellant would prevent Krysta from leaving
the apartment, take her cell phone and take her car keys during
arguments.
On the night of July 7, 2015, Krysta decided to stay on the
living room couch, using her cell phone, rather than go to bed
with appellant. He came into the living room and snatched the
phone out of Krysta’s hands. She followed him to the bedroom
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and asked for her phone back. Appellant refused. They argued
over the phone until appellant told Krysta, “you make me want to
chop your head off with my machete.” The statement scared
Krysta because she knew appellant kept a cache of knives
between the mattress and box spring of their bed.
Krysta walked out of the bedroom, telling appellant “I
guess I have no choice but to go and report that then.” As she
entered the living room, Krysta heard appellant “charging” after
her. She turned around and saw appellant running toward her
at “full speed.” Appellant “tackled” Krysta and they fell back
onto a dining table. Appellant “twist[ed]” Krysta around and
threw her to the floor. Krysta was yelling at appellant to get off
of her. He restrained Krysta on the floor, put his hand over her
mouth and told her to be quiet. When Krysta got quiet, appellant
started to apologize and eventually got off of her and let her walk
back to the bedroom.
Krysta realized she had urinated on herself during the
incident, so she started changing her clothes. Then, she realized
that one of her toes seemed to be broken. She told appellant she
needed to go the emergency room. He asked her if she was “going
to tell.” She told appellant she wouldn’t lie. Appellant pulled out
one of his knives and told Krysta he might as well “finish the job
now then.” Krysta asked him if he was really going to stab her.
Appellant paused and dropped the knife, saying he didn’t want to
go back to jail. Krysta told appellant she would say the dogs
jumped on her and caused the injury. She wanted appellant to
think she would not report the incident. Krysta called her friend
Rebecca B. to stay with her son while she and appellant went to
the hospital.
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Appellant stayed at the hospital for about an hour. Then
he went back to the apartment to relieve Rebecca B. Rebecca
testified, “when [appellant] first walked in, he told me I did it. I
hurt her toe.” Appellant also admitted that he “football tackled”
Krysta, causing them both to hit the table and then hit the floor.
Rebecca sent Krysta a text message that appellant had admitted
he broke her toe.
At the hospital, Krysta told the doctors that her dogs
caused her toe injury. Even after appellant left the hospital,
Krysta did not report his abuse. She also did not mention the
large bruise forming on her buttock. Doctors had to reset
Krysta’s toe twice; they believed it was either broken or
dislocated. Krysta’s toe was sore and she could not walk on its
for several weeks. X-rays of the injury showed the toe was not
broken nor dislocated. Even after reviewing the radiology report,
however, the treating emergency room physician testified
Krysta’s toe was dislocated.
On July 10, Krysta reported the incident to her therapist.
The therapist contacted the police. Appellant was arrested that
day.
The Defense. Appellant testified in his own defense. He
claimed that, on the night of July 7, he was asleep in bed when
Krysta came in screaming about having a broken toe. He took
her to the hospital because Krysta was on his medical insurance
and he had the insurance card. Appellant stayed there for about
an hour and then went home. He said hello to Rebecca B. and
then went back to bed because he had to get up early for work.
Appellant denied tackling Krysta, pulling a knife, threatening
Krysta or admitting any wrongdoing to Rebecca. Krysta reported
abuse because she had discovered texts he had exchanged with
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another woman and was jealous. Appellant also denied ever
taking away Krysta’s cell phone or car keys.
Appellant’s father, Geoffrey Marcus, testified that Krysta
and appellant lived with him for about six months, from August
2014 to February 2015. During that time, he overheard
appellant tell Krysta to move out five or six times. Krysta would
become upset but she didn’t move out. Marcus never saw his son
get physical with Krysta or yell at her. Appellant told Marcus
that the July 7 incident started when he asked Krysta to get a
better job. She hurt her foot and went to the emergency room
because of an injury caused by the dogs.
Prior Incidents of Domestic Violence. In 2007, appellant
had dating relationships with both Kaci A. and Jennifer B. In
late June 2007, appellant was involved in a domestic violence
incident with Kaci A. The jury did not hear the fact of this
incident, but the deputy sheriff who investigated the incident
testified appellant pleaded guilty to kidnapping, exhibiting a
deadly weapon, false imprisonment and criminal threats in
connection with it.
In October 2007, appellant was living in Jennifer B.’s
Ventura apartment. The two argued frequently, often late into
the night. Appellant would also physically restrain Jennifer from
leaving the apartment, leaving bruises on her arms. Jennifer got
fired from her job because she was absent or late so frequently.
Appellant also broke several of Jennifer’s cell phones. He told
her that he had members of the Hell’s Angles watching her all
the time. In late September, 2007, Jennifer told appellant she
wanted him to move out. He became enraged and broke some
dishes in her kitchen. Jennifer was afraid, so she ran into her
bedroom and locked the door. Appellant punched a hole in the
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door. About a week later, appellant broke another cell phone of
Jennifer’s.
On October 8, appellant began another violent fight with
Jennifer B. after she told him to move out and put his clothing
outside the apartment in plastic bags. Appellant left the
apartment and Jennifer ran back inside, locking the dead bolt
behind her. Appellant kicked the door down. Jennifer had been
standing right behind the door, so she fell backwards from the
force, hitting her head on a stereo cabinet. When Jennifer was
able to get up, she realized her head was bleeding and that
appellant was in the apartment. She ran back outside and got in
her car. Jennifer started to drive the car out of the apartment
complex but appellant jumped on the hood. She stopped.
Appellant punched at the driver’s side window until it broke.
While he crawled in through the window, Jennifer worked her
way into the passenger seat. She eventually got out of the car
through the passenger side door and started to run away.
Jennifer took refuge in a neighbor’s apartment until police
arrived to arrest appellant.
Appellant pleaded guilty to inflicting corporal injury on a
cohabitant, false imprisonment and vandalism as a result of this
incident. He was sentenced to a term of four years in state prison
as a result of these offenses and those he committed against Kaci
A.
DISCUSSION
Evidence of Prior Offenses. Appellant contends the trial
court abused its discretion when it admitted evidence of his prior
domestic violence offenses against Kaci A. and Jennifer B.
because those offenses were remote in time, dissimilar to the
current offenses and more prejudicial than probative. We
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conclude there was no abuse of discretion. (People v. Richardson
(2008) 43 Cal.4th 959, 1000-1001.)
“[I]n a criminal action in which the defendant is accused of
an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible
pursuant to [Evidence Code] [s]ection 352.” (Evid. Code, § 1109,
subd. (a)(1).) Evidence Code section 1109 incorporates Evidence
Code section 352 and “makes evidence of past domestic violence
inadmissible only if the court determines that its probative value
is ‘substantially outweighed’ by its prejudicial impact.” (People v.
Johnson (2010) 185 Cal.App.4th 520, 531.)
The trial court has broad discretion to determine whether
evidence is admissible and its exercise of discretion will not be
disturbed on appeal absent a clear abuse. (People v. Cudjo (1993)
6 Cal.4th 585, 609.) In determining whether the probative value
of evidence is substantially outweighed by its prejudicial impact,
we look to Evidence Code section 352. To be excluded, the
evidence must “‘uniquely tend[] to evoke an emotional bias
against a party as an individual, while having only slight
probative value with regard to the issues. . . .’” (People v. Scheid
(1997) 16 Cal.4th 1, 19.)
The trial court did not abuse its discretion when it
admitted evidence of appellant’s domestic violence offenses
against Kaci A. and Jennifer B. To begin with, the prior offenses
were not remote in time from the current offenses. Appellant
committed the prior offenses in 2007, about eight years before he
assaulted Krysta W., and less than five years after he was
released from custody for the prior offenses. The present offenses
also bear strong similarities to the priors. Appellant habitually
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broke Jennifer B.’s cell phones just as he would snatch Krysta’s
phone from her hands during arguments. He further isolated his
victims by physically preventing them from leaving the
apartments they shared. With both Jennifer and Krysta,
appellant became especially violent after the women indicated
they wanted to end their relationship with him. The offenses also
involve similar types of violence: pushing, tackling, and
restraining the victim.
The evidence of appellant’s prior offenses was also unlikely
to evoke an emotional bias against appellant because the record
was clear that appellant pleaded guilty to serious felonies and
served a prison sentence in connection with them. The jury had
no incentive to punish appellant for his prior offenses by finding
him guilty of the current crimes. We further note that appellant
was acquitted of the charge that he exhibited a deadly weapon to
Krysta, and the jury was unable to reach a verdict on the charge
that he made criminal threats to her. This suggests the jury
weighed the evidence rather than reaching a verdict based on an
emotional bias against appellant.
Evidence of Great Bodily Injury. Appellant contends the
evidence was insufficient to prove Krysta suffered great bodily
injury because x-rays taken the night of the incident showed her
toe was neither broken nor dislocated. To determine whether the
great bodily injury finding is supported by substantial evidence,
we review the evidence in the light most favorable to the
judgment and presume in support of the judgment every fact the
trier of fact could reasonably have deduced from the evidence.
(People v. Maury (2003) 30 Cal.4th 342, 396.) We ask whether
the record, considered as a whole, contains substantial evidence
from which a reasonable trier of fact could conclude beyond a
8
reasonable doubt that appellant inflicted great bodily injury as
charged. (People v. Rayford (1994) 9 Cal.4th 1, 23; see also People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Section 12022.7 mandates an additional term of three years
where a defendant “personally inflicts great bodily injury on any
person.” (Id., subd. (a).) It defines great bodily injury as “a
significant or substantial personal injury.” (Id., subd. (f).) Proof
that a victim’s injury meets this threshold “is commonly
established by evidence of the severity of the victim’s physical
injury, the resulting pain, or the medical care required to treat or
repair the injury.” (People v. Cross (2008) 45 Cal.4th 58, 66
(Cross).) Abrasions, lacerations, and bruising can constitute
great bodily injury. (People v. Escobar (1992) 3 Cal.4th 740, 752.)
Substantial evidence supports the jury’s finding that
appellant personally inflicted great bodily injury on Krysta.
After appellant charged Krysta, causing her to fall into the dining
table and then to the floor, she believed her toe was broken. Her
treating physician concluded the toe was dislocated after
reviewing x-rays that found no fracture and a “questionable mild
or dorsal disfigurement” of the toe. Krysta’s toe was sore and she
could not walk on it for several weeks. She also had a large
bruise on her left buttock that lasted for a long time. It was very
sore and Krysta could not lay down on that area for weeks.
Krysta required medical care for injuries caused by
appellant. She experienced pain and had difficulty walking.
(Cross, supra, 45 Cal.4th at p. 66.) Based on this evidence a
reasonable trier of fact could conclude, beyond a reasonable
doubt, that Krysta’s injuries were “significant or substantial.”
9
(§ 12022.7, subd. (f).) The finding that appellant personally
inflicted great bodily injury on Krysta was supported by
substantial evidence.
Sentencing Issues. Appellant contends the trial court erred
when it denied his motion to dismiss one of his two prior “strike”
convictions pursuant to People v. Vargas (2014) 59 Cal.4th 635(Vargas). He further contends the trial court erred when it
refused to strike both of his prior strikes in the interest of justice.
(§1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
Respondent contends the trial court did not abuse its sentencing
discretion. We agree.
The felony information filed against appellant alleged two
prior “strike” convictions, for kidnapping Kaci A. (§207) and for
making a criminal threat to her.2 (§ 422.) Appellant pleaded
guilty to these and other offenses.
The probation report indicated that appellant accosted Kaci
A., his former girlfriend, at about 9 p.m. as she was walking to
her car which was parked near Solimar Beach in Ventura. Kaci
asked appellant to leave many times; he refused. He eventually
got into the passenger seat of her car and refused to leave. Kaci
made a cell phone call, and then told appellant her brother was
coming to help her. Appellant replied, “‘Yeah, I want your
brother to come down, ‘cause you’re gonna find him at the end of
the pier at the bottom of the ocean. And if you try anything, the
same thing’s going to happen to you.’” Kaci started crying and
repeatedly asked appellant to leave. He finally got out of the car,
but he then picked Kaci up, threw her over his shoulder, and
2Appellant’s offenses against Jennifer B. were alleged as
five-year prior serious felony convictions (§ 667, subd. (a)), and
convictions for which he served prior prison terms. (§ 667.5.)
10
carried her about 50 yards to the beach. She broke free and ran
back to her car. Appellant followed, using his body to prevent
Kaci from closing the car door. He pulled out a pocket knife,
pointed the blade at Kaci and told her he did not care who he
stabbed or who he killed. At that point, Kaci’s brother arrived
and pushed appellant away. This caused appellant to drop the
knife. Kaci grabbed it and fled with her brother.
Relying on Vargas, appellant contends the trial court
should have dismissed one of his strike convictions because the
kidnapping and criminal threat arose from a single act against a
single victim. Appellant’s reliance on Vargas is misplaced.
There, the defendant was convicted of burglary and conspiracy to
commit grand theft after she and a partner broke into a home
and stole various items. She also had prior convictions of
carjacking and robbery based on the single act of forcibly taking a
victim’s car. (Vargas, supra, 59 Cal.4th at p. 645.) Our Supreme
Court held the trial court “was required to dismiss one of
defendant’s two prior strike convictions,” because the failure to do
so would be “inconsistent with the intent underlying” the Three
Strikes law. (Ibid.)
The court reasoned voters would have understood “that a
person would have three chances – three swings of the bat, if you
will − before the harshest penalty could be imposed. The public
also would have understood that no one can be called for two
strikes on just one swing. Permitting the trial court below to
treat defendant’s 1999 robbery and carjacking convictions as
separate strikes − despite the fact they were based on a single
criminal act − would do just that, and thus contravene the voter’s
clear understanding of how the Three Strikes law was intended
to work.” (Vargas, supra, 59 Cal.4th at p. 646.)
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Vargas explained its holding was consistent with the
holding in People v. Benson (1998) 18 Cal.4th 24 (Benson), which
remained good law. In Benson, the defendant had “two prior
strike convictions based on a single incident: after returning his
neighbor’s vacuum cleaner, which he had borrowed, he returned
to her apartment ostensibly to retrieve his keys, whereupon he
grabbed her, forced her to the floor, and eventually stabbed her
multiple times. Based on this incident, he was convicted of
residential burglary (§ 459) and assault with the intent to commit
murder (former § 217). Because these two felonies were based on
the same course of conduct, the trial court stayed one of the
defendant’s two prior convictions pursuant to section 654, which
expressly prohibits separate punishment for two crimes based on
the same act, but has been interpreted to also preclude multiple
punishment for two or more crimes occurring within the same
course of conduct pursuant to a single intent.” (Vargas, supra, 59
Cal.4th at p. 642, fn. omitted.)
After the defendant in Benson reoffended, he argued one of
his prior convictions should be stricken for purposes of
sentencing, because both convictions were based on the same
course of conduct. The Benson court disagreed, holding that a
prior conviction may qualify as a strike even if the sentence for
that conviction was stayed under section 654. (Benson, supra, 18
Cal.4th at pp. 29-30.) “[T]he language of section 1170.12,
subdivision (b)(1), unequivocally establishes that the electorate
intended to qualify as separate strikes each prior conviction that
a defendant incurred relating to the commission of a serious or
violent felony, notwithstanding the circumstance that the trial
court, in the earlier proceeding, may have stayed sentence on one
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or more of the serious or violent felonies under compulsion of the
provisions of section 654.” (Id. at p. 31.)
We conclude, as did the trial court, that appellant’s prior
strike convictions are more analogous to the priors at issue in
Benson than those at issue in Vargas. According to the probation
report appellant first threatened Kaci A. and then committed
kidnapping by picking her up and carrying her away from the
road and onto the beach. He did not threaten her as he was in
the process of carrying her to the beach; he first threatened her
and then kidnapped her. The two offenses, although they may
have been part of a continuous course of conduct for purposes of
section 654, were not a “single act,” like the carjacking and
robbery in Vargas. The trial court correctly declined to dismiss
one of appellant’s prior convictions under Vargas.
Appellant next contends the trial court abused its
discretion when it refused to strike one or both of his prior
convictions in the interest of justice. (§ 1385; People v. Superior
Court (Romero), supra, 13 Cal.4th 497.) He contends the trial
court failed to give enough weight to several mitigating factors:
appellant was out of custody and release from parole for four
years and four months before reoffending; there is no evidence he
violated the conditions of his two-year long parole; his strike
offenses were his first criminal convictions; the strike offenses
were committed in close proximity, during a single course of
conduct; and his prior offenses did not involve the use of weapons
or the infliction of great bodily injury.
The trial court declined to strike appellant’s prior
convictions because it found appellant had not led a crime-free
life and had instead engaged in similar criminal conduct with
similar victims for more than a decade. It further found that
13
appellant’s criminal history indicated he posed a danger to the
women with whom he had relationships. The trial court believed
there was a high likelihood appellant would re-offend if he was
released and also that appellant’s offenses were committed
against particularly vulnerable victims. It was the trial court’s
opinion that the purpose of the Three Strikes law was to increase
prison terms for repeat felons like appellant.
When deciding a section 1385 motion to strike, the trial
court is required to consider “whether, in light of the nature and
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998)
17 Cal.4th 148, 161.) It is only in an extraordinary case that a
defendant can be deemed outside the spirit of the Three Strikes
law. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
We review the trial court’s denial of a section 1385 motion
for abuse of its broad sentencing discretion. The ruling will not
be disturbed on appeal unless it is “so irrational or arbitrary that
no reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at p. 377.) Appellant has the burden to show an abuse of
discretion. (People v. Jordan (1986) 42 Cal.3d 308, 316.) In the
absence of such a showing, we are required to presume the trial
court acted to achieve legitimate sentencing objectives. (People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) We are
also required to presume the trial court considered all of the
relevant factors in the absence of an affirmative record to the
contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
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There was no abuse of discretion here. As the trial court
reasoned, appellant had not led a crime-free life and had
continued to engage in the same abuse of his intimate partners
after his release from prison. His victims were always
particularly vulnerable to abuse because they were physically
much smaller than appellant and were emotionally and
sometimes financially dependent on him. The trial court did not
act irrationally or arbitrarily when it concluded that appellant
continued to pose a danger to women despite his prior prison
terms and satisfactory completion of parole. Nothing in the
record indicates the trial court based its decision on improper
reasons or that it failed to consider relevant factors. There was
no abuse of discretion.
Victim Restitution. At sentencing, the trial court ordered
appellant to pay victim restitution of $13,445.40, to account for
the expenses Krysta W. and her son incurred to relocate and
access mental health treatment. (§ 1202.4.) The amount of
restitution awarded is consistent with the recommendation of the
probation department as noted in its report to the trial court.
Appellant received a copy of the report. He now contends the
trial court abused its discretion in imposing restitution because
there no evidence supports the amount awarded and appellant
was not afforded a hearing to contest the amount.
These contentions have been waived. Appellant did not
object to the restitution fine in the trial court. Section 1202.4,
subdivision (f) mandates, “The court shall order full restitution.”
The statute then notes, “The defendant has the right to a hearing
before a judge to dispute the determination of the amount of
restitution. The court may modify the amount, on its own motion
or on the motion of the district attorney, the victim or victims, or
15
the defendant.” (§1202.4, subd. (f)(1).) Appellant never
requested a hearing on the amount of restitution nor did he file a
motion to modify that amount. “[A] defendant’s failure to object
in the trial court to the imposition of a restitution fine constitutes
a waiver of the right to complain thereof on appeal.” (People v.
Gibson (1994) 27 Cal.App.4th 1466, 1469.)
Had the issue not been waived, we would reject it. “A
restitution order is reviewed for abuse of discretion and will not
be reversed unless it is arbitrary or capricious.” (People v.
Gemelli (2008) 161 Cal.App.4th 1539, 1542.) “Section 1202.4 does
not, by its terms, require any particular kind of proof.” (Id. at pp.
1542-1543.) The trial court is entitled to rely on the probation
report. “‘When the probation report includes information on the
amount of the victim’s loss and a recommendation as to the
amount of restitution, the defendant must come forward with
contrary information to challenge that amount.’” (People v.
Keichler (2005) 129 Cal.App.4th 1039, 1048, quoting People v.
Foster (1993) 14 Cal.App.4th 939, 947.)
Here, the probation report stated that Krysta and her son
incurred $13,445.40 in expenses for relocation and mental health
services. The trial court’s order was based on this information.
Appellant has provided no information challenging the amount of
the award. We conclude the trial court did not abuse its
discretion.
CONCLUSION
The judgment is affirmed.
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NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Jeffrey G. Bennett, Judge
Superior Court County of Ventura
______________________________
Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.