Filed 12/2/13 P. v. Mezzles CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B240078
                                                                            (Super. Ct. No. 1359458)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

WAYNE MEZZLES,

     Defendant and Appellant.



                   Wayne Mezzles appeals from the judgment following his conviction by jury
of inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a));1 possession of a
deadly weapon (former § 12020, subd. (a)(1))2; four counts of criminal threats (§ 422); and
two counts of assault (§ 240). In a bifurcated proceeding, the trial court found true
allegations of two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior
serious or violent felony convictions within the meaning of California's "Three Strikes"




         1
             All statutory references are to the Penal Code unless otherwise stated.
         2
        Appellant possessed metal (brass) knuckles in violation of former section 12020,
subdivision (a)(1). In connection with the possession of metal knuckles, the current
operative provisions are section 16920, which defines metal knuckles, and section 21810,
which continues former section 12020, subdivision (a)(1) without substantive change. (38
Cal.L.Rev.Comm. Reports (2009) p. 217.)
law. (§§ 667, subds. (b)-( i), 1170.12, subds. (a)-(d).) The court sentenced him to an
aggregate term of 90 years to life in state prison.3
              Appellant contends that, with respect to count 4, the evidence of his threat is
not sufficient to support the verdict, "as a matter of law," and that the jury was wrongly
instructed. He also asserts that (1) prosecutorial misconduct denied him a fair trial; (2) the
court abused its discretion in refusing to strike his prior serious felony convictions; and (3)
the resulting 90 years to life sentence constituted cruel and unusual punishment. We
conclude that the evidence fails to establish that the alleged victim of count 4 was the
recipient of any "criminal threat" as defined by section 422. We will reverse that
conviction, modify the sentence accordingly, and otherwise affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
                                    Prosecution Evidence
              On October 30, 2010, appellant was home, drinking beer and Southern
Comfort with his wife, Laura. At about 10:30 p.m., he went out to get more Southern
Comfort. Laura's 15-year-old daughter, Amy, her boyfriend, Will, and his friend, Cory,
were in Amy's room. Laura was talking with them while appellant was out. She was
sitting next to Cory, holding up and examining one of his hands and talking about hand
scars. Suddenly they heard a loud thud or bang on the outside wall or window, and noticed
appellant outside, yelling. He barged inside, with brass knuckles on one hand, and headed



       3
        The trial court sentenced appellant as follows: count 3 (§ 422, Laura), a
determinate term of 10 years (two § 667, subd. (a) enhancements), followed by a
consecutive indeterminate sentence of 25 years to life (§ 667, subd. (e)(2)(A)); count 1
(§ 273.5, Laura), a stayed indeterminate sentence of 25 years to life (§ 654); count 4
(§ 422, Amy), determinate term of 10 years, consecutive (two § 667, subd. (a)
enhancements), followed by a concurrent indeterminate sentence of 25 years to life;
count 5 (§ 422, Amy), a determinate term of 10 years, consecutive (two § 667, subd. (a),
enhancements), followed by a concurrent indeterminate sentence of 25 years to life;
count 6 (§ 422, Amy), a determinate term of 10 years, consecutive (two § 667, subd. (a)
enhancements), followed by a concurrent indeterminate sentence of 25 years to life;
count 8 (§ 12020, subd. (a)(1)), a consecutive indeterminate sentence of 25 years to life;
counts 2 and 9 (§ 240), 180 days each, concurrent.

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toward Amy's room. Appellant "raise[d] his hand in a violent gesture . . . toward" Cory,
who fled.
              Appellant entered Amy's room, grabbed Laura's hair, and said something
like, "You lying bitch, whore." He slammed Laura's head into Amy's dresser, breaking her
eyeglasses and giving her a black eye.
              Amy jumped between Laura and appellant, and told him to get away from
her mom. He threw Amy to the floor, and then pulled Laura through the hallway, to the
master bedroom. Amy followed them. After hearing appellant yell, "I'm going to kill
you," Will called the police. Appellant left Laura's room and went to Amy's room briefly,
where he tried to tackle Will. Will brushed him off.
              When appellant left Laura's room, Amy called the police. He returned to
Laura's room and said, "Now that I'm going to jail for good, I'm going to kill you guys."
He also yelled, "You fucking bitches, I'm going to kill you."
              The police arrived and arrested appellant. Before the police took him away,
he looked at Amy and said, "I'll kill you." Amy was scared.
                                      Defense Evidence
              Appellant's mother, Karen Brennan, testified regarding appellant's childhood,
his alcoholic father, and his alcoholic stepfather. The defense also called Dr. Robert
Owen, a clinical psychologist, as an expert witness. Dr. Owen diagnosed appellant with
post-traumatic stress disorder (PTSD) and alcoholic dependence disorder. He testified that
PTSD impairs a person's ability to process information and weigh consequences.
                                         DISCUSSION
                         Amy is Not a Victim of the Count 4 Threat
              Appellant argues his count 4 criminal threat conviction must be reversed
because Amy is not a victim for purposes of section 422, as a matter of law. More
specifically, he argues Amy "was not the person threatened" because he did not direct the
count 4 threat at her. (Id., subd. (a).) We agree.
              Section 422, subdivision (a) provides in relevant part as follows: "Any
person who willfully threatens to commit a crime which will result in death or great bodily


                                              3
injury to another person, 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, which, on its face and under the
circumstances in which it is made, is 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, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family's safety, shall be
punished by imprisonment in the county jail not to exceed one year, or by imprisonment in
the state prison."
              In response to the jury's request for clarification, the trial court advised the
jury that count 4 was based on "the statement made by [appellant] to Laura Mezzles, heard
by Amy [S.] prior to the police being called, I'm going to kill you." The prosecution
drafted that response, which tracked its theory that Amy heard appellant threaten to kill
Laura, her mother, which frightened Amy.
              Appellant asserts that section 422 "applies only to a threat that is
communicated to a particular person and causes that same person to be in fear for herself,
or for members of her family, or both." Continuing in that vein, he asserts that because his
"I'm going to kill you," threat was not made "to Amy," she cannot be "the 'person
threatened'" under section 422. We agree.
              "A [section 422] criminal threat . . . is a specific and narrow class of
communication." (In re Ryan (2002) 100 Cal.App.4th 854, 863.) "When interpreting a
statute, 'we turn first to the language of the statute, giving the words their ordinary
meaning.' [Citation.]" (People v. Rubalcava (2000) 23 Cal.4th 322, 328.) "'If the
language is clear and unambiguous there is no need for construction . . . ."" People v.
Talibdeen (2002) 27 Cal.4th 1151, 1154.) Under section 422, the victim of a criminal
threat is "the person threatened," the person to whom the perpetrator directs, or
communicates his threat. (§ 422, subd. (a); People v. Wilson (2010) 186 Cal.App.4th 789,
806 ["[T]he defendant must intend for the victim to receive and understand the threat."])
Amy was not "the person threatened" in count 4.



                                                4
                                     Substantial Evidence
              Appellant argues that there is not sufficient evidence to support the count 4
threat. We agree.
              In reviewing the sufficiency of the evidence, we review the entire record in
the light most favorable to the prosecution "to determine whether it contains evidence that
is reasonable, credible, and of solid value, from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt." (People v. Silva (2001) 25 Cal.4th 345,
368.) We do not resolve credibility issues or evidentiary conflicts, and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480.) A reversal is unwarranted
unless there is no substantial evidence to support the finding under any hypothesis
whatever. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
              Using CALCRIM No. 1300, the trial court instructed the jury as follows
regarding the criminal threat counts which named Amy as the victim: "The defendant is
charged in Counts 4, 5, and 6 with having made a criminal threat in violation of Penal
Code section 422. [¶] To prove that the defendant is guilty of this crime, the People must
prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully
cause great bodily injury to Amy [S.]; [¶] 2. The defendant made the threat orally; [¶] 3.
The defendant intended that his statement be understood as a threat; [¶] 4. The threat was
so clear, immediate, unconditional, and specific that it communicated to Amy [S.] a
serious intention and the immediate prospect that the threat would be carried out; [¶] 5.
The threat actually caused Amy [S.] to be in sustained fear for her own safety; [¶] AND 6.
Amy [S.]'s fear was reasonable under the circumstances." (CALCRIM No. 1300.) That
instruction reflects the elements of a section 422 criminal threat, including the requirement
that the perpetrator directed the threat at the victim.
              The prosecution's theory was that the count 4 threat was directed at Laura
before the police were called, but overheard by Amy, the named victim. While these facts,
for which there was ample evidence, would support a conviction if Laura were the named
victim, they do not support a like conviction for the count 4 threat naming Amy as the


                                                5
victim. The crime contemplates a victim, "the person threatened" and words that cause
"that person reasonably to be in sustained fear for . . . her own safety or for . . . her
immediate family's safety . . . ." (§ 422 subds. (a), italics added.) The theory of the
prosecution would define the victim as either the person threatened or a member of their
immediate family who overheard the threat. That theory is contrary to the plain language
of section 422. (People v. Rubalcava, supra, 23 Cal.4th at p. 328; People v. Talibdeen,
supra, 27 Cal.4th at pp. 1154-1155.) Substantial evidence does not establish that Amy was
the victim of the count 4 threat.4
                                     Prosecutorial Misconduct
              Appellant contends that the prosecutor committed misconduct by seeking to
elicit inadmissible opinion testimony from appellant's psychiatric expert, Dr. Robert Owen.
The trial court ruled that the expert could testify about PTSD, but not about appellant's
capacity to form the requisite specific intent for criminal threats or whether he had that
intent at the time of the crimes. The prosecutor nonetheless repeatedly asked questions
regarding intent. Some examples follow: "By Mr. Verburgt: Q: Would it be fair to say
that the defendant's emotional functioning may be of interest, but it's largely irrelevant in a
case in determining guilt?" "Q: What's the intent required for a violation of Penal Code
section 273.5?" "Q: Do you know what the mental state required, "yes" or "no," for
violation of Penal Code section 422, criminal threats?" The court sustained objections to
the just quoted questions. Thereafter, at the bench, the court reminded Mr. Verburgt of its
ruling limiting Dr. Owen's testimony regarding "the defendant's specific state of mind."
Mr. Verburgt persisted in asking improper questions. The court excused the jury,
conferred with counsel, and restated its ruling regarding the limits on Dr. Owen's
testimony. Mr. Verburgt again returned to the topic of appellant's state of mind, asking,
"So you have no way of knowing what the defendant's state of mind was on that date, do
you?" The court interrupted and admonished him, "It's an improper question." Mr.
Verburgt soon asked another improper question, leading the court to admonish him, yet

       4
         Our resolution of this issue obviates the need to address appellant's instructional
error claim.

                                                6
again as follows: "No. We've made this clear. I've told you several times, do not go into
that area." Next question."
              The standards of review of prosecutorial misconduct are well settled.
(People v. Williams (2013) 56 Cal.4th 630, 671.) A prosecutor who uses deceptive or
reprehensible methods to persuade commits misconduct. (Ibid.) If the prosecutor's actions
infect the trial with such unfairness as to deny due process, the federal Constitution
demands reversal. (Ibid.) Under California law, a prosecutor who uses such methods
commits misconduct even if his actions do not result in a fundamentally unfair trial.
(Ibid.)
              To preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition. (People v. Williams, supra, 56 Cal.4th at p. 671.)
Defendant's claim is preserved, however, if an admonition would not have cured the harm.
(Ibid.) When a misconduct claim challenges comments made by the prosecutor, the
pertinent inquiry is whether there is a reasonable likelihood the jury construed or applied
the remarks in an objectionable manner. (Ibid.)
              Defense counsel moved for a mistrial based upon prosecutorial misconduct
after Dr. Owen completed his testimony. Counsel argued the prosecutor's repeated
violations of the ruling limiting Dr. Owen's testimony were prejudicial because they
suggested the defense was hiding the truth from the jury. The trial court concluded the
improper questions hurt the prosecutor and any detriment to the defense was cured by the
court's admonishment to the prosecutor. Defense counsel submitted the matter without
requesting any further admonition, and the court denied the motion.
              Appellant has forfeited his claim by failing to request another admonition.
(People v. Williams, supra, 56 Cal.4th at p. 671.) Moreover, he has not shown that an
admonition would not have cured the harm. (Ibid.) Forfeiture aside, the cited misconduct
was harmless under any standard of review. The trial court instructed the jury that
"[n]othing the attorneys say is evidence" and the jury must "decide what the facts are in
this case," using "only the evidence that was presented in this courtroom." (CALCRIM
No. 222.) It further instructed the jury that attorneys' "questions are not evidence," and it


                                               7
should "not assume that something is true just because one of the attorneys asked a
question that suggested it was true." (Ibid.) It is presumed that the jury understood and
followed the instructions. (People v. Mooc (2001) 26 Cal.4th 1216, 1234.) There is no
reasonable likelihood that the jury construed or applied the challenged questions in an
improper or erroneous manner. (People v. Samayoa (1997) 15 Cal.4th 795, 843-844;
People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds by People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) That said, we join with the trial court in concluding
that Mr. Verburgt engaged in improper questioning in light of the court's repeated
admonitions. It appears from this record that Mr. Verburgt engaged in deliberate
misconduct dedicated to the evasion, or outright defiance, of the court's ruling and
admonitions.
                                            Romero
               Appellant contends that the trial court abused its discretion by denying his
motion to strike one or both of his prior convictions for purposes of three strikes
sentencing, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, or
reduce them to misdemeanors. We disagree.
               Defense counsel argued that the victims' injuries were minimal; appellant
was under the influence of alcohol at the time of the offense; his stepfather sexually abused
him for many years, which caused appellant to suffer from a mental disorder (PTSD); and
he had taken steps to rehabilitate himself. The prosecution stressed appellant's long
criminal history, which included convictions for violent offenses and violations of parole
and probation, the absence of mitigating factors, and the numerous aggravating factors in
his case. The court declined to strike either of the prior "strike" convictions.
               A trial court has the discretion to strike a prior conviction for purposes of
sentencing if the defendant falls outside the spirit of the three strikes law. (§ 1385; People
v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to
exercise its discretion, the court "must consider whether, in light of the nature and
circumstances of [the defendant's] present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the defendant


                                               8
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.)
              The refusal to strike a prior conviction is likely to be considered an abuse of
discretion only in extraordinary cases where the trial court was unaware of its discretion,
or considered impermissible factors. (People v. Carmony (2004) 33 Cal.4th 367, 378.) In
the absence of such a showing, trial court is presumed to have acted to achieve the
legitimate sentencing objectives, and its discretionary determination to impose a particular
sentence will not be set aside on review. (People v. Superior Court (Alvarez) (1997) 14
Cal.4th 968, 977-978.)
              There was no abuse of discretion. Appellant's prior strikes were a 1999
robbery of a homeless man (§ 211) and a 2007 criminal threat (§ 422) he made against a
woman who ended their dating relationship. His prior convictions include other violent
crimes, such as a misdemeanor corporal injury upon a spouse/or former spouse (§ 273.5,
subd. (a)) and battery (§ 242). As the trial court observed, the courts and the prosecution
repeatedly gave him opportunities on probation, in treatment programs, instead of
sentencing him to prison, but that "didn't work." The court also had "to balance the safety
of the community," and appellant's "danger to the community." The court reasonably
determined that appellant "is the kind of person that is within the scope of the Three
Strikes Law" and denied his Romero motion.
                              Cruel and Unusual Punishment
              We reject appellant's contention that his sentence is grossly disproportionate
to his offense and constitutes cruel and unusual punishment under the Eighth Amendment
of the United States Constitution. In Rummel v. Estelle (1980) 445 U.S. 263, 274, the
United States Supreme Court upheld a mandatory life sentence under a Texas recidivist
statute even though the defendant had been convicted of obtaining $120.75 by false
pretenses and his prior convictions consisted of two nonviolent felonies. The Court
reasoned that the sentence under a recidivist statute is "based not merely on that person's
most recent offense but also on the propensities he has demonstrated over a period of time


                                              9
during which he has been convicted of and sentenced for other crimes." (Id. at p. 284.)
The statute serves the legitimate goal of deterring repeat offenders and of segregating the
recidivist "from the rest of society for an extended period of time." (Ibid.) Since
appellant's strikes include violent offenses, the justification for a lengthy sentence here is
more compelling than in Rummel.
              We also reject appellant's contention that his sentence violates the state
constitutional prohibition against cruel or unusual punishment. (Cal.Const., art. 1, § 17.)
A punishment violates the state constitution if "it is so disproportionate to the crime for
which it is inflicted that it shocks the conscience and offends fundamental notions of
human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) Appellant's sentence
was warranted because of his recidivism, the violent nature of his prior offenses, and the
circumstances of the present offense. (See People v. Martinez (1999) 71 Cal.App.4th
1502.)
                                        DISPOSITION
              Appellant's conviction on count 4 is reversed and dismissed, and the sentence
attributable to that count is stricken. The clerk shall prepare an amended abstract of
judgment and forward a copy to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.
              NOT TO BE PUBLISHED.




                                            PERREN, J.

We concur:



              GILBERT, P.J.



              YEGAN, J.


                                              10
                                Edward H. Bullard , Judge

                         Superior Court County of Santa Barbara

                          ______________________________




             Linda C. Rush, 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, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney
General, for Plaintiff and Respondent.




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