Filed 12/4/13 P. v. Marks CA3
                                           NOT TO BE PUBLISHED



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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C069757

         v.                                                                      (Super. Ct. No. 09F08624)

MICHAEL MARKS,

                   Defendant and Appellant.




         A jury convicted defendant Michael Marks of inflicting injury upon a cohabitant
resulting in a traumatic injury, assault with a deadly weapon, kidnapping, criminal threat,
and false imprisonment by violence or menace, all based on a November 23, 2009 attack




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against Dena Marks.1 The jury also found that defendant knew and reasonably should
have known that Dena was “developmentally disabled.”
       Defendant now contends (1) there is insufficient evidence to support the
conviction for criminal threat, and there is also insufficient evidence to support the
finding that Dena was developmentally disabled; (2) the trial court had a sua sponte duty
to instruct on the lesser crime of attempted criminal threat; and (3) the trial court erred in
denying defendant’s motion for a new trial.
       We conclude (1) substantial evidence supports the conviction for criminal threat,
but there is insufficient evidence to establish that Dena was “developmentally disabled”
as defined by statute; (2) on this record, the trial court did not have a sua sponte duty to
instruct on the lesser crime of attempted criminal threat; and (3) the trial court did not
abuse its discretion in denying defendant’s motion for a new trial.
       We will strike the enhancement based on the finding that Dena was
developmentally disabled and otherwise affirm the judgment.
                                      BACKGROUND
       Dena told emergency room personnel on November 24 that the prior evening, her
boyfriend hit her with his fists, cut her palm with a kitchen knife, hit the back of her head
with a board (causing her to lose consciousness), and held her against her will in his
mother’s house. Dena identified defendant as her assailant. She had a bruise on her right
cheek, abrasions to her face, a bruise on her left shoulder, and a cut to her right palm.
She did not have any bump on her head or mark on her neck. A chest X-ray and
computed tomography (CT) scan of her head and face revealed no fractures or internal
injuries. The emergency room nurse contacted law enforcement authorities.




1 We will refer to members of the Marks family by their first names for clarity. All dates
are from 2009, unless otherwise indicated.

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       City of Sacramento Police Officer Dustin Henderson interviewed Dena at the
hospital. Dena again identified defendant as her assailant. She related the following to
Officer Henderson:
       Around 8:00 or 9:00 p.m. on November 23, defendant told Dena, “[y]ou’re gonna
die tonight.” He barricaded the door to Dena’s bedroom and began to punch Dena on her
head and face with both of his closed fists. He cut Dena’s hand with the blade of a
kitchen knife when she put her hands up to stop his strikes. He also grabbed Dena by the
neck and choked her. At one point, defendant removed a gun and a razor or box cutter
from his pocket and placed them on a dresser.
       Defendant beat Dena throughout the evening. Around midnight, he forced her into
his car at gunpoint, telling her that his friends had her daughter and he would tell his
friends to rape and kill the daughter if Dena did not comply.
       Defendant took Dena to a river. He said he was going to drown the demons out of
her. He punched her and then hit her in the back of her head with a piece of wood,
causing her to lose consciousness.
       Defendant then took Dena to his mother’s house. He carried her into his bedroom,
blocked the bedroom door, and placed Dena in the closet. He hit Dena some more until
he got tired.
       The next morning, defendant told Dena “to act straight” in front of his mother,
otherwise she would not get her daughter back. Defendant’s mother took Dena to the
hospital when she saw Dena’s injuries.
       Officer Henderson searched defendant’s residence and questioned defendant’s
mother Virginia Marks. The officer found a pile of clothes behind the door of
defendant’s bedroom, which was consistent with Dena’s statement that defendant put
things against his bedroom door to block the door. Virginia initially denied taking Dena
to the hospital, but eventually admitted that she drove Dena to the hospital that morning.



                                              3
Virginia said, in response to the officer’s further questioning, “It’s my son. I don’t know
anything.”
       Sacramento Police Officer Lisa Nou Khang-Her interviewed Dena by telephone
on November 25. The officer read the statement Dena provided to Officer Henderson
verbatim and asked Dena if she wanted to make any changes to the statement. Dena
confirmed the statement was correct, but changed the length of time she had dated
defendant. Dena told the officer defendant assaulted her, the assault began in Dena’s
home, defendant had a gun, he took her to a river and then to his mother’s house against
her will, and he continued to hit her there. Dena said she was afraid defendant would kill
her and she was going to stay with her mother until defendant was arrested.
       Three days after Dena was assaulted, Sacramento County Deputy Sheriff Corey
Newman responded to a report that defendant kidnapped Dena. Dena’s mother Theresa
Marks informed the deputy that defendant threatened Dena’s family and then grabbed
Dena and drove away in his car.
       Dena subsequently failed to appear for an appointment to sign a form for Officer
Khang-Her, and later told the officer that the kidnapping and assault never occurred.
However, Dena then said the kidnapping and assault occurred, but she did not know who
assaulted her. She claimed defendant was not her assailant and said she did not want to
press charges against defendant.
       Dena said her injuries were from a fight with another woman. She also said she
did not know what really happened because of her various medical conditions. Then, she
said that a male family member assaulted her and forced her to say defendant was
responsible, but she would not say who assaulted her.
       Testifying under a grant of immunity, Dena offered yet another story at
defendant’s preliminary hearing. Defendant’s jury heard this preliminary hearing
testimony because the district attorney’s office could not locate Dena for the trial, despite
its reasonably diligent efforts to find her. Dena testified at the preliminary hearing that

                                              4
defendant did not assault her. Instead, Terry Stephens, a family friend with whom Dena
had been having an affair, assaulted her in his motor home. According to Dena, Stephens
slapped and punched her on and off all day, threatened to kill her, and displayed a gun
during the assault. Dena said Stephens dropped her off near a hospital the next day and
instructed her to blame defendant for her injuries. Dena claimed she did what Stephens
told her to do because she was scared about what Stephens might do to her children.
Dena also said she was high when Officer Henderson interviewed her, and she was mad
at defendant because he left her. She said she sometimes lashed out at him because she
was jealous. Dena declared she loved defendant with all her heart, noting that defendant
helped her raise her children and he was the father of Dena’s 16-year-old daughter.
       Dena also testified that she asked defendant to pick her up from her mother’s
house on November 26 and she left willingly in defendant’s car. Theresa likewise told
the jury that her report of a kidnapping was based on a misunderstanding. Theresa denied
at the trial that defendant threatened Dena or Theresa on November 26.
       The prosecution played a recording of a jailhouse telephone conversation between
Dena and defendant. The conversation occurred about three months before the start of
the trial. Defendant told Dena in the conversation that if she did not go to court, the
prosecution will have no case. Defendant said “[d]on’t say nothin” and “don’t even come
in the courtroom.”
       Regarding the November 23 incident, the jury convicted defendant of inflicting
injury upon a cohabitant resulting in a traumatic injury (count one -- Pen. Code, § 273.5,
subd. (a)),2 assault with a deadly weapon (count two -- § 245, subd. (a)(1)), kidnapping
(count three -- § 207, subd. (a)), criminal threat (count four -- § 422), and false
imprisonment by violence or menace (count five -- §§ 236, 237). The jury found that




2 Undesignated statutory references are to the Penal Code.


                                              5
Dena was developmentally disabled and defendant knew and reasonably should have
known of her condition (§ 667.9).3 The jury was deadlocked on counts six (criminal
threats) and seven (kidnapping), which relate to the November 26 incident, and the trial
court declared a mistrial as to those counts. The trial court found the allegation that
defendant had suffered three prior serious felony convictions to be true. It denied
defendant’s motion for a new trial and motion to strike his prior convictions, and
sentenced defendant to 25 years to life in prison on count one, a consecutive 25 years to
life in prison on count three, two years for the section 667.9, subdivision (b) enhancement
[crime against a developmentally disabled victim], and a total of 20 years for the prior
strikes, for an aggregate prison term of 22 years plus 50 years to life. The trial court
imposed but stayed sentences of 25 years to life on counts two, four and five.
                                       DISCUSSION
                                              I
       Defendant contends there is insufficient evidence to support the conviction for
criminal threat, and there is also insufficient evidence to support the finding that Dena
was developmentally disabled.
       “ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence -- 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.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.



3 Section 667.9 says the sentencing enhancement applies when, among other things, the
disability or condition is “known or reasonably should be known” to the defendant.
(Italics added.) Here, the People charged, and the jury found, that Dena’s “disability and
condition was known and reasonably should have been known” to defendant. (Italics
added.)

                                              6
[Citation.] [¶] . . . “[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citation.]’ ” (People v. Nelson (2011) 51 Cal.4th 198,
210.) Reversal on the ground of insufficiency of the evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support . . .’ ” the jury’s finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
                                              A
       We turn first to defendant’s contention that there is insufficient evidence to
support his conviction for making a criminal threat.
       To prove a criminal threat, the prosecution must establish all of the following:
(1) the defendant willfully threatened to commit a crime which will result in death or
great bodily injury to another person, (2) the defendant made the threat with the specific
intent that the statement be taken as a threat, even if there is no intent of actually carrying
it out, (3) 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) the threat actually caused the person threatened to suffer sustained fear for his or her
safety or the safety of his or her immediate family, and (5) the threatened person’s fear
was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-
228.) Defendant claims the prosecution failed to present evidence supporting the last
three elements of the crime.
       Regarding the third element, substantial evidence in the record supports the
finding of an unequivocal, unconditional and immediate threat against Dena. Defendant
told her: “You’re gonna die tonight.” Defendant claims the statement was merely an
angry rant, but he put his threat immediately into action. After making the statement,
defendant barricaded the door and began beating and choking Dena. He cut her hand

                                               7
with a kitchen knife. The words defendant spoke and the circumstances surrounding his
statement demonstrated that his statement was so unequivocal, unconditional, immediate,
and specific as to convey a gravity of purpose and an immediate prospect of execution of
the threat. (§ 422, subd. (a); People v. Fierro (2010) 180 Cal.App.4th 1342, 1348.)
       Nonetheless, regarding the fourth element, defendant asserts there was no
evidence that Dena experienced sustained fear. He notes that the fear cannot be
momentary, fleeting, or transitory.
       But there was substantial evidence of sustained fear. Dena told Officer Henderson
that during the assault in her bedroom she was crouched in a corner of the room.
Defendant beat and terrorized Dena for hours. At the hospital the next morning, Dena
was tearful and very anxious. She worried that defendant would “come and get her.”
The next day, Dena was still afraid defendant would kill her. The jury could reasonably
deduce from this evidence that defendant’s November 23 threat to kill Dena actually
caused Dena to be afraid for a period of time that was not momentary, fleeting, or
transitory. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.)
       As for the fifth element, defendant notes that the fear must be reasonable under the
circumstances. On this record, however, the jury could fairly conclude that Dena’s fear
was reasonable. (People v. Fierro, supra, 180 Cal.App.4th at pp. 1348-1349; People v.
Allen (1995) 33 Cal.App.4th 1149, 1156.)
                                            B
       We turn next to defendant’s claim of insufficient evidence to support the jury’s
finding that Dena was “developmentally disabled.”
       A defendant who commits the crime of kidnapping (§ 207) against a person who is
developmentally disabled must receive a two-year enhancement for each violation if the
defendant knew or reasonably should have known of the disability and the defendant has




                                            8
a prior conviction for specified offenses, which includes first degree burglary.4 (§ 667.9,
subds. (a)-(c).) “Developmentally disabled” is defined as a severe, chronic disability of a
person, which is (1) attributable to a mental or physical impairment or a combination of
mental and physical impairments, (2) likely to continue indefinitely, and (3) results in
substantial functional limitation in three or more of the following areas of life activity:
(a) self-care, (b) receptive and expressive language, (c) learning, (d) mobility, (e) self-
direction, (f) capacity for independent living, and (g) economic self-sufficiency.
(§ 667.9, subd. (d).)
       Defendant does not dispute that Dena had “a number of physical and mental
ailments,” including the loss of a leg. But defendant claims there was insufficient
evidence to establish that Dena had substantial functional limitation in three of the life
activity areas listed in section 667.9.
       The Attorney General counters that in addition to an amputated leg, Dena also had
congestive heart failure, kidney failure, asthma, neuropathy, heart attacks and strokes.
The Attorney General asserts that Dena was on numerous medications, had limited
mobility, and had to be taken to the hospital on many occasions.
       There was evidence that Dena was an individual with one or more disabilities and
that she experienced serious medical conditions, but defendant is correct that there was an
insufficient showing of substantial functional limitation in at least three of the
enumerated life activity areas.
       The Attorney General points out that Dena said defendant took care of her every
day. However, there was no evidence establishing what kind of care defendant provided
for Dena. At the time of the assault, Dena maintained a residence that was separate from



4 The jury convicted defendant of one count of kidnapping. The trial court found
defendant was previously convicted of first degree burglary, a serious felony under the
three strikes law. Defendant received a two-year enhancement under section 667.9.

                                              9
defendant’s residence. Although defendant’s mother took Dena to the hospital and to
medical appointments occasionally, there was no evidence that Dena was incapable of
caring for herself or living independently.
       In addition, the emergency room doctor who conducted a standard psychiatric
exam of Dena on November 24 said Dena exhibited normal judgment. Dena was able to
tell emergency room personnel what happened to her. Officer Henderson observed that
Dena was lucid, seemed to be thinking clearly, and appeared to understand his questions.
Dena was able to give Officer Henderson a detailed statement.
       Moreover, the recorded jailhouse conversation between Dena and defendant
indicated that Dena was capable of communicating with a landlord about renting a house
and figuring out how she was going to pay rent and pay defendant’s attorney. There was
no evidence regarding Dena’s economic self-sufficiency.
       Even if the evidence established substantial functional limitation in the area of
mobility, there was insufficient evidence of substantial functional limitation in at least
two more of the life activity areas enumerated in the statute -- self-care, receptive and
expressive language, learning, self-direction, capacity for independent living or economic
self-sufficiency.
       On this record, there was insufficient evidence to support the imposition of the
section 667.9 enhancement. Accordingly, we will strike the enhancement.
                                              II
       Defendant also claims the trial court had a sua sponte duty to instruct on the lesser
crime of attempted criminal threat. He argues the trial court had such a duty because the
prosecution did not introduce evidence that defendant’s threat actually caused Dena to
suffer sustained fear.
       Defendant is correct that a trial court has a sua sponte duty to instruct on lesser
necessarily included offenses supported by substantial evidence, if the evidence raises a
question as to whether all of the elements of the charged offense are present (People v.

                                              10
Lopez (1998) 19 Cal.4th 282, 287-288), irrespective of whether the instruction is
consistent with the defendant’s theory of the case. (People v. Breverman (1998) 19
Cal.4th 142, 148-149.) But as we explained in part IA ante, there was substantial
evidence from which the jury could reasonably find that defendant’s November 23 threat
actually and reasonably caused Dena to experience sustained fear. Accordingly, the trial
court did not have a sua sponte duty on this record to instruct on attempted criminal
threat.
                                               III
          Defendant further contends the trial court erred in denying his motion for a new
trial.
          Defendant’s motion for a new trial was based on a posttrial notarized declaration
by Dena which stated: “To whom it may concern I Dena Marks am very sorry for all the
trouble I put Michael Marks threw by lieing on him First of all Mr. Marks never hit me I
had hurt myself and cut my hand as well I was on a high dose of pain killers ant Fentenal
patches and also street drugs I was totaly outa control I thought he used me and went
back to his x wife so I was very hurt and with the drugs and my deppresson it all turned
to anger and not let him be with any other women but me Im sorry for lieing Please
forgive my actions.”
          The trial court denied defendant’s motion, concluding that the declaration was not
credible, hearing yet another explanation from Dena would add little to the case, and
admission of the declaration would not change the result on retrial.
          “ ‘ “ ‘ “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. Howard (2010) 51
Cal.4th 15, 42-43.) In ruling on a motion for a new trial based on newly discovered
evidence, the trial court considers the following factors: whether (1) the evidence was
newly discovered, (2) the evidence was not cumulative, (3) admission of the evidence

                                               11
could render a different result probable on a retrial of the cause, (4) the party could not
with reasonable diligence have discovered and produced the evidence at the trial, and (5)
these facts were shown by the best evidence of which the case admits. (Id. at p. 43.) The
trial court may also consider the credibility of the evidence in order to determine whether
its introduction in a new trial would render a different result reasonably probable. (Ibid.)
Each case is judged on its own facts. (Ibid.) And the trial court presumes the verdict is
correct. (People v. Davis (1995) 10 Cal.4th 463, 524.)
       The fact that an important prosecution witness has recanted does not necessarily
compel the granting of a motion for a new trial. (People v. Langlois (1963) 220
Cal.App.2d 831, 834.) In fact, a posttrial retraction is looked upon with suspicion.
(Ibid.) In such a case, the trial court weighs the evidence offered in support of the
motion, and the trial court may reject the recantation if it is unworthy of belief. (Ibid.)
       Here, the trial court determined that Dena’s declaration was not worthy of
credence. It pointed out that Dena was eager to help defendant. She recanted her
statement to police and blamed Terry Stephens for her injuries at the preliminary hearing.
When defendant was held to answer despite her preliminary hearing testimony, she
absented herself from the trial after she and defendant discussed how her nonappearance
would help defendant’s case. “Conveniently or miraculously, notwithstanding an
outstanding bench warrant and her failure to appear [at the trial], after the verdict, she
reappears in short order, with yet a third story of what happened in the case.” The trial
court said the statements Dena provided on November 24, under stress or excitement,
were more reliable and trustworthy.
       The trial court was well within its discretion to find Dena’s posttrial declaration
not credible. (People v. Delgado (1993) 5 Cal.4th 312, 328-329 [posttrial statement by a
witness that she, not defendant, was responsible for the victims’ injuries lacked
credibility in light of the witness’s “obvious continued attachment to defendant” and
other evidence contradicting her posttrial statement]; People v. Langlois, supra,

                                              12
220 Cal.App.2d. at pp. 834-835 [posttrial recantation by prosecution witness not credible
where witness claimed to be in love with defendant and desired to help him avoid
punishment].) Dena told medical personnel and police officers, close to the time of the
attack, that defendant was responsible for her injuries. Her report was corroborated in
part by defendant’s mother and evidence in defendant’s bedroom. The statement by
Dena’s mother that defendant was “crazy” because he thought Dena was cheating on him
provided a possible motive for the November 23 attack. Dena changed her story after she
had contact with defendant on November 26. Consistent with her professions of love for
defendant, all of the stories Dena told after November 26 exonerated defendant.
Moreover, two days after the jury rendered verdicts against defendant, Dena contacted
defendant’s attorney and offered to provide a notarized statement confessing that her
injuries were self-inflicted and defendant “never laid a finger” on her.
       The trial court also found Dena’s posttrial declaration to be cumulative, because
the jury already heard Dena recant her complaint against defendant and blame someone
else for the attack, and already heard that Dena had lied. The record supports these
findings. Additionally, there was evidence presented at defendant’s trial that Dena was
heavily medicated and she was motivated by jealousy when she first reported the assault.
Hearing those facts again would not likely render a different result at a retrial.
       Defendant claims Dena’s injuries were not consistent with her report of a beating,
but were instead consistent with self-inflicted injuries. However, the emergency room
doctor who treated Dena testified as an expert on emergency medicine and indicated that
Dena’s injuries were consistent with Dena’s statements at the hospital.




                                              13
           On this record, the trial court did not abuse its discretion in denying the motion for
retrial.
                                          DISPOSITION
           The section 667.9 enhancement is stricken. The judgment is affirmed in all other
respects. The trial court is directed to prepare and forward to the Department of
Corrections and Rehabilitation a certified copy of a corrected abstract of judgment.



                                                                    MAURO                    , J.


We concur:


                  RAYE                    , P. J.


                  HOCH                    , J.




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