Filed 6/12/14 P. v. King CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A136816
v.
THEODORE FRANKLIN KING,                                                  (City & County of San Francisco
                                                                         Super. Ct. No. 217598)
         Defendant and Appellant.


         Defendant Theodore Franklin King appeals from a judgment convicting him of
assault with a deadly weapon not a firearm (Pen. Code, § 245, subd. (a)(1)),1 true findings
of two prior serious felonies, and a sentence of 35 years to life imprisonment. On appeal
he challenges the trial court’s denial of his new trial motion based on newly discovered
evidence and the denial of his motion to strike prior convictions in the interest of justice.
Although there was a plausible basis for the new trial motion, we cannot say that the trial
court abused its broad discretion in determining that the new evidence was not likely to
have produced a different outcome, nor that it erred in denying the Romero2 motion. We
shall therefore affirm the judgment.




1
    All statutory references are to the Penal Code unless otherwise noted.
2
    People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


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                                       Background
The evidence at trial
       Defendant’s conviction arises out of a rather bizarre series of events that occurred
at the Embarcadero BART station in San Francisco at around 8:00 p.m. on October 14,
2011. There is no dispute as to what occurred in the BART station. We shall therefore
summarize those facts as they are presented in defendant’s appellate brief (omitting
record citations).
       The victim, Frank Vinculado and his girlfriend Brittany O’Neil “were standing on
the platform, waiting for the train. Vinculado was giving directions to someone, when
[defendant] approached Vinculado and started talking to him at random about nonsense.
[Defendant] had been seen walking in circles, or pacing around the station, yelling.
O’Neil said he looked kind of crazy, his eyes were wide open. [Defendant] seemed angry,
or irritated with Vinculado, and was acting aggressively towards him.
       “[Defendant] got right up in Vinculado’s face, and kept saying he didn’t want any
problems with Vinculado. Vinculado tried to remain calm, he did not say or do anything
physical to provoke [defendant]. Vinculado told [defendant] they didn’t have any
problems, and at that point, Vinculado thought he had defused the situation. After
[defendant] made a few comments, he walked away. O’Neil felt uncomfortable, so she
and Vinculado walked to the other side of the platform, in the opposite direction of where
[defendant] had gone.
       “Vinculado had his back to [defendant] when O’Neil saw [defendant] running
towards Vinculado with a chain over his head. [Defendant] swung the chain around and
the lock on the chain hit Vinculado on the head, causing him to fall to the ground.
Vinculado did not see [defendant] coming, but he felt a blow to his head which knocked
him down. Vinculado had a gash on his head and was bleeding. Vinculado momentarily
lost his vision, but once it returned, he saw [defendant] running away with a lock in his
hand. Vinculado sat up a little bit and screamed, ‘what did I do to you?’
       “The whole thing happened in a matter of maybe 10 seconds. Paloma Muela called
911 from her cell phone. Steve Jackson also called 911 and while he was on the phone,


                                             2
[defendant] charged at him and yelled, ‘I’ll kill you.’ Jackson believed King was going to
hit him.
       “[Defendant] boarded the train, but was detained by the police. . . . [¶] . . . [BART
Police Department Patrol Officer Deborah] Early recovered a chain at the scene that was
approximately 12 inches long with a two-inch Master padlock on it. She found the chain
sitting on the ground about 10 feet away from where King was sitting when she arrived.”
       Defendant’s appearance during and immediately after these events was described
by numerous witnesses. Vinculado described defendant, when he first approached him, as
appearing “frustrated or irritated.” O’Neil described defendant as appearing “angry and
agitated”; she did not smell alcohol on his breath. Muela described defendant as
appearing “just furious. Whatever it was he was saying [to Vinculado], he was just angry,
like intensely angry.” Prior to attacking Vinculado, defendant “was pacing back and forth
a lot. He didn’t know, really, where he was going. He would . . . go out this way and turn
around and fast walk the other way. At one point he walked half way up the stairs and
then came back down to the platform.” Jackson testified that in the course of his work he
frequently comes in contact with people who are under the influence of alcohol and
drugs, and that he observed nothing about defendant’s conduct or appearance that lead
him to believe defendant was under the influence of alcohol or drugs. He testified that
defendant “never staggered. His speech wasn’t staggered. His walk wasn’t staggered. He
walked all the way down to the end of the BART platform. He walked all the way back.
He . . . just seemed mad, angry, and violent. He didn’t seem drunk. He didn’t seem like
he was on drugs. He didn’t seem anything like that.”3
       San Francisco Police Officer Sean Frost, who arrived at the BART platform as
defendant was being placed in handcuffs by other officers, “sometime after 8 o’clock
p.m.,” observed no signs of intoxication from the defendant. Defendant said “nothing

3
 Jackson testified further that when defendant threatened to kill him, he replied
something like, “Hey, do what you’re going to do, but if you hit me, you’re going to
prison,” at which point defendant “grabbed his shirt collar and pulled it down . . . to like
show tattoos and said ‘I’ve been to prison. I don’t give a fuck.’ ”


                                              3
sticks out in my head that would have made me thought that [defendant] had some [type]
of altered mental status. Because if that had happened, we probably would have had to
call an ambulance for him. That is typically what we always do.” When Officer Early
arrived at the BART station at about 10:00 p.m., defendant was sitting quietly next to
another officer in custody. She “did not smell any alcoholic beverage on his breath, and
he was very calm.” Later that evening defendant was interviewed at a BART police
station by Detective John Power. The detective did not “see any signs of [defendant]
being under the influence of drugs or alcohol during the course of [the] interview with
him.” The interview was videotaped and the tape was played for the jury. During the
interview, defendant gave answers that appeared to be largely delusional.4 Power
attributed “the strange nature of his response[s]” to “more of a psychological issue.”
       The theory of the defense was that earlier in the day a stranger had spiked
defendant’s beer with a hallucinogenic substance that rendered him essentially
unconscious and with no recollection of having struck Vinculado. Defendant testified in
his own defense. Quoting again from defendant’s appellate brief, his testimony is
summarized as follows: “On October 14, 2011, [defendant] was at Occupy Oakland,
speaking before a group about human rights until around 1:30 or 2:00 p.m. While he was
talking to a girl, some guy he had never met before offered him a beer. [Defendant]
refused, saying he did not drink, but the guy pleaded with him, so defendant decided to
have a drink with the guy. He took two sips of the beer, but it tasted funny, coppery and
bitter. [Defendant] asked the guy what was wrong with the beer, but the guy told him to
just enjoy it. Defendant pushed the guy and told him he had no right to give him

4
  Defendant said he was a “military attaché” with the CIA. At one point he asked Power
to remove his handcuffs and told him, “as a member of the CIA that was just an order. I
outrank you, sir. Please handle your business accordingly.” When Power refused,
defendant continued, “Okay, I am going to tell you this if you don’t do as I ask you, I will
make heads roll.”At another point defendant gave a rambling, largely incoherent
explanation of what lead to him “turn[ing] around and I fucking whacked his ass upside
the head with a chain.” When asked what went through his mind before he whacked him,
defendant responded, “What’d I think? I thought he was going to turn around and stab
me. As a member of the CIA, it’s my every right to whack that bastard.”

                                             4
something like that. Security came over and separated them. Defendant went to the
medical tent, he wanted someone to observe him because he wasn’t sure what the effects
of the beer would be. After about 25 to 30 minutes, [defendant] began to feel hot, like his
body was on fire, and things were hazy. [¶] [Defendant] was asked to leave because he
had pushed the guy who spiked his beer. Defendant went to get his bicycle, but it was
gone. The chain had been cut, and the lock, was laying on the ground, so [defendant] put
it in his pocket. [Defendant] was feeling the effects of whatever was in his drink, as he
headed down to the BART station. The effects were getting more intense. [Defendant]
was becoming agitated and scared. He got on a train, believing he was going to Hayward,
and the next thing he knew, he was in San Francisco.”
       Defendant testified that he did not recall getting off the BART train, but he did
remember an exchange with Vinculado in which Vinculado threatened him with a knife.
Asked what he did after he saw the knife, defendant answered, “I don’t know. Next thing
I know is they were taking me off the train.” He did not remember hitting Vinculado.
Defendant testified that he remembered an interaction with Jackson, who he said chased
him around the station. And he testified to experiencing hallucinations in the BART
station and in jail. While talking to an officer in the BART station, “he turned into an
alien,” “his face got real long, and he had big teeth. And you ever seen the movie
‘Predator’? He had little things coming off of his head.” In jail he “was trying to flush
myself down the toilet so that I could get out . . . .”
       Finally, a volunteer who worked for the medic group at Occupy Oakland, Michael
Terry, testified that although the medic personnel maintained records of the people who
used the medic tents, all of those records were confiscated by the police on October 25,
and never returned them. However, Terry testified that he recognized defendant and was
sure that he had seen him at the Occupy Oakland encampment.

Jury instructions and closing arguments

       The jury was instructed that voluntary intoxication is not a defense to assault, but
that “[i]f you find that the defendant was involuntarily intoxicated and as a result believed


                                               5
that Mr. Vinculado was going to stab him with a knife, he did not have the specific intent
or mental state required for assault with a deadly weapon.”5 The jury was also instructed:
“The defendant is not guilty of assault with a deadly weapon . . . if he acted while legally
unconscious. Someone is legally unconscious when he or she is not conscious of his or
her actions. Someone may be unconscious even though able to move.
[¶] Unconsciousness may be caused by involuntary intoxication. [¶] The People must
prove beyond a reasonable doubt that the defendant was conscious when he acted. . . . .”
       In his closing argument defense counsel did not dispute that defendant had
assaulted Vinculado but argued that “what this case is all about, really, is what happened
earlier, and what happened earlier is Mr. King was drugged at Occupy Oakland. He was
dosed and mickeyed. And how do we know this? Well, one. You saw him [referring to
the videotape of his interrogation by Detective Power]. . . . You saw the evidence of the
man clearly out of his mind, clearly delusional, hallucinating. Two, the guy who drugged
[defendant] admitted it. The guy said ‘Don’t worry. It’s nothing you won’t enjoy.’ ”
       Referring to the videotape in reply, the prosecutor argued there were four possible
explanations “for the defendant’s behavior up there.” One was mental illness (which he
pointed out was not a defense and for which there was no competent evidence), a second
possible explanation was malingering or faking, and a third was voluntary intoxication.
As to the fourth possibility, involuntary intoxication, the prosecutor argued that from the
videotape it could not be determined whether defendant was voluntarily or involuntarily
intoxicated, or mentally ill. And as to whether “[t]he guy that actually slipped him a
mickey admitted to him that he had given him something that he would enjoy. How do
we know that? What is the only evidence we have? The defendant’s word, his word on
the stand. We didn’t hear from the guy with the British accent; we didn’t hear from the


5
  The instruction also stated: “The defendant is not guilty of assault with a deadly weapon
. . . if he did not have the intent or mental state required to commit the crime because he
reasonably did not know a fact or reasonably and mistakenly believed a fact. If the
defendant’s conduct would have been lawful under the facts as he believed them to be, he
did not commit assault with a deadly weapon . . . .”

                                             6
girl that was there; we didn’t hear from the paramedics. . . . Ask yourself. Is the
explanation offered by the defense reasonable?”

The verdict

       The jury found defendant guilty of assault with a deadly weapon not a firearm
(§ 245, subd. (a)(1)), and found true that defendant had suffered two prior convictions
within the meaning sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b)
and (c), and four prior convictions within the meaning of section 667.5, subdivision (b).
The jury could not agree on a second count which charged defendant with making
criminal threats to Steve Jackson, and that count was later dismissed in the interest of
justice.

Motion for New Trial

       Defendant filed a motion for a new trial on the ground of newly discovered
evidence. The supporting declaration filed by his trial attorney explained: “After the
verdict came in this case I received a call from Michael Terry who informed me that his
wife had been talking to a friend of hers about the case her husband, Mr. Terry, was
testifying in and the friend, a Mr. Gorgio Bianchi, informed her that he was at Occupy
Oakland on October 14th, 2011, and recalls the incident in question. Mr. Bianchi
identified [defendant] from a photograph Defense counsel provided to Mr. Terry.” A
supporting declaration from Bianchi read as follows: “I was at Occupy Oakland on
October 14, 2011. [¶] At that time I saw an individual in a physical confrontation with
another man. [¶] This individual claimed that the man he was fighting with had drugged
his beer. [¶] The individual who claimed he had been drugged was escorted off the
Occupy premises because of his violent reaction to the man who he claim[ed] had
drugged him. [¶] In June of 2012, I was shown a photograph of [defendant]. [Defendant]
is the same individual I saw on October 14, 2011 at Occupy Oakland claiming he was
drugged.”
       Trial counsel’s declaration also stated that he had spoken with two jurors who
indicated that this new evidence might have caused them to change their votes as jurors.


                                              7
“Juror number 1 told me that the reason she found [defendant] guilty on count 1 is
because she believed he had made up his defense of being involuntarily intoxicated. She
further informs me that if she had heard the testimony of Gorgio Bianchi, that very well
may have changed her decision in this matter and the decision of other jurors as well.”
The attorney “informed juror #4 what Mr. Bianchi would have testified to as delineated
in Mr. Bianchi’s affidavit. Juror #4 told me that very likely would have changed his vote
depending upon the credibility of Mr. Bianchi on the witness stand.”
       After a hearing, the trial court denied the new trial motion, with the following
explanation: “I don’t believe that the affidavits would have led to a different result in this
case based on the evidence that has been submitted at trial and both evaluation on the
affidavits in this matter.”

Romero motion and judgment

       As part of defendant’s sentencing memorandum, defendant requested the court to
strike his prior strikes under section 1385. (People v. Superior Court (Romero), supra,
13 Cal.4th 497.) The court subsequently struck the four prior convictions pled under
section 667.5, subdivision (b) but denied the motion to strike the two priors under
sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c). The court
explained the reason for its ruling as follows: “I acknowledge that the age of the two prior
strike convictions goes awhile back. The defendant falls within the purview of the Three
Strikes Law because he has been a repeat offender. Since the 1980’s he’s been convicted
of an additional three felonies and five misdemeanors, has never been free from custody
for more than a year, as he has conceded, himself, and has been sentenced to an aggregate
total of more than two dozen years in state prison. The instant offense was unprovoked.
This is a violent offense.”
       The court sentenced defendant to a prison term of 25 years to life as a third
offender, plus 10 years for the two prior serious felony convictions, for a total sentence of
35 years to life. Defendant has timely appealed.




                                              8
                                          Discussion
1. The trial court did not abuse its discretion in denying the motion for a new trial.
       Section 1181, subdivision 8 authorizes the court to grant a new trial upon newly
discovered evidence. The factors that the court should consider in ruling upon the motion
are well settled: “ ’ “1. That the evidence, and not merely its materiality, be newly
discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render
a different result more probable on a retrial of the cause; 4. That the party could not with
reasonable diligence have discovered and produced it at trial; and 5. That these facts be
shown by the best evidence of which the case permits.” ’ ” (People v. Turner (1994) 8
Cal.4th 137, 212.)
       “ ’To grant a new trial on the basis of newly discovered evidence, the evidence
must make a different result probable on retrial.’ [Citation.] ‘[T]he trial court has broad
discretion in ruling on a new trial motion . . . ,’ and its ‘ruling will be disturbed only for
clear abuse of that discretion.’ ” (People v. Verdugo (2010) 50 Cal.4th 263, 308.) “ ’ “The
determination of a motion for a new trial rests so completely within the court’s discretion
that its action will not be disturbed unless a manifest and unmistakable abuse of
discretion clearly appears.” ’ ” (People v. Delgado (1993) 5 Cal.4th 312, 328.)
       In the trial court, the prosecutor argued that the motion should be denied because
defendant had not demonstrated reasonable diligence in obtaining the evidence and
because the new evidence was not likely to produce a different outcome.6 As indicated
above, in denying the motion, the court relied only on the latter ground, and we shall
similarly restrict our consideration. (People v. Delgado, supra, 5 Cal.4th at p. 329, fn. 7
[no need to consider other grounds if motion denied because of unlikeliness of different
result on retrial].)



6
  Prior to the submission of the Bianchi declaration, the prosecutor also argued that
defendant had failed to provide the best evidence of the facts to which Bianchi would
testify. However, the court permitted defendant to file the Bianchi declaration, disposing
of that issue.


                                               9
       Initially, those portions of the declaration of defendant’s attorney reciting the
reasoning of two jurors in reaching their verdict and stating how Bianchi’s testimony may
have affected their vote is of questionable admissibility. (Evid. Code, § 1150, subd. (a);
see, e.g., People v. Danks (2004) 32 Cal.4th 269, 301-302.) Although a defendant “has
met his burden of establishing that a different result is probable on retrial of the case if he
has established that it is probable that at least one juror would have voted to find him not
guilty had the new evidence been presented” (People v. Soojian (2010) 190 Cal.App.4th
491, 521), “the test is not a subjective one[,] whether a particular trier of fact would be
persuaded by the new evidence to reach a different conclusion, but rather is an objective
one based on all the evidence, old and new, whether any second trier of fact, court or
jury, would probably reach a different result” (People v. Huskins (1966) 245 Cal.App.2d
859, 862; see People v. Bishop (1993) 14 Cal.App.4th 203, 212). The trial judge’s
determination of that question may be overturned only for a “manifest and unmistakable
abuse of discretion.” (People v. Verdugo, supra, 50 Cal.4th at p. 309.)
       As indicated above, in argument to the jury the prosecutor attempted to cast doubt
on defendant’s testimony that at the Occupy Oakland encampment a stranger had spiked
his beer without his knowledge by arguing that this testimony was not supported by any
other witness. Bianchi’s testimony would have tended to provide such support.
Nonetheless, the trial court could reasonably conclude based on the trial testimony of
seven witnesses that whatever defendant had sipped at the encampment, he was not
intoxicated or unconscious hours later in the BART station, and that Bianchi’s testimony
would not have caused any trier of fact to conclude otherwise. The court could well
conclude that the consistent testimony of the several witnesses who observed defendant
in the BART station and when he was in custody provided convincing evidence that,
whatever defendant may have consumed at the encampment and whatever his mental
problems may have been, he was not drunk or under the influence of drugs in the BART
station, and that Bianchi’s testimony would not have affected that finding.
       The Attorney General suggests other reasons for which the court could reasonably
have concluded that Bianchi’s testimony was not likely to affect the outcome. There was


                                              10
a possible inconsistency between the statement in the Bianchi declaration that the man
who claimed that his beer had been drugged was escorted off the encampment premises
because of his violence towards the man he claimed had drugged him and defendant’s
testimony that after taking two sips of the beer he went to the medic clinic for a half hour.
Bianchi’s declaration said nothing about the clinic, suggesting a possible basis for
questioning his credibility. (People v. Delgado, supra, 5 Cal.4th at p. 329 [“ ’trial court
may consider the credibility as well as materiality of the evidence in its determination
[of] whether introduction of the evidence in a new trial would render a different result
reasonably probable’ ”].) Moreover, even if Bianchi’s testimony confirmed that
defendant believed his beer had been spiked, the testimony would not necessarily
establish that it had in fact been spiked, much less that it had been spiked with a
substance powerful enough to render defendant unconscious hours later.
       Still further, defendant’s selective memory—recalling interactions at the BART
station with Vinculado, Jackson and others, but not recalling anything after he allegedly
observed Vinculado with a knife until he was removed from the BART train—could well
cause jurors to doubt his credibility regardless of what Bianchi might testify.
       In denying the new trial motion, the trial court made reference to People v. Dyer
(1988) 45 Cal.3d 26. Contrary to defendant’s argument, that decision does provide
support for the trial court’s conclusion here. In denying a motion for a new trial in that
case, the court stated: “[D]efendant never denied that the events took place substantially
as [two witnesses] testified. Thus even if the evidence somehow could be considered
‘new,’ defendant has failed to demonstrate that admission of the testimony of two
witnesses that he appeared ‘spaced out’ hours before the murders would likely have led to
a different result.” (Id. at p. 52.) Similarly, we cannot say that the trial court here abused
its broad discretion in determining that Bianchi’s testimony that he observed defendant
accusing someone of having spiked the beer from which he took two sips would not be
likely to change the finding that considerably later he was not involuntarily intoxicated or
unconscious when he committed the assault for which he was convicted.



                                              11
2. The trial court did not abuse its discretion in denying the Romero motion.
       Defendant asserts that the trial court erred in denying his Romero motion to strike
his two prior strike convictions “without considering the particulars of his background,
character, and prospects, and specifically how his well-documented, long-standing mental
illness affected these things.” Although in explaining its ruling the court made no
mention of those matters, it does not follow that the court failed to consider them. The
court was not required to provide any explanation for its denial of the motion (In re Large
(2007) 41 Cal.4th 538, 550). The defendant’s criminal history to which it did refer
presumably, in the court’s view, outweighed any other considerations and was the
controlling reason, amply supported by the evidence, that defendant fell within the
“spirit” of the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 161.) There
is, to be sure, good reason to question whether defendant’s apparent mental health
problems are best addressed by permanent incarceration. However, it is for the
Legislature to provide more constructive remedial programs and facilities. Section 1385,
as construed in Romero, is not such a remedy.
                                       Disposition
       The judgment is affirmed.

                                                 _________________________
                                                 Pollak, J.

We concur:


_________________________
McGuiness, P. J.


_________________________
Jenkins, J.




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