Opinion
D070742
01-03-2018
THE PEOPLE, Plaintiff and Respondent, v. GIOVANNI RIVERA, Defendant and Appellant.
Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN353088) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed. Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant Giovanni Rivera of one count of assault with a deadly weapon after he held a knife to his father's throat in the early morning hours after Thanksgiving Day in 2015. It was undisputed at trial that Rivera had been diagnosed with bipolar disorder when he was a teenager, and that a few months prior to the incident that led to his conviction, Rivera had suffered a traumatic brain injury as a result of a severe beating. An expert testified on Rivera's behalf regarding the effects of Rivera's cognitive impairments and mental health issues.
On appeal, Rivera raises four issues, two of which involve the trial court's instructions to the jury and two of which involve the trial court's sentencing decisions. Specifically, Rivera contends: (1) that the trial court erred in denying a defense request to instruct the jury on the defense of unconsciousness; (2) that the trial court erred in instructing the jury with the CALCRIM instruction on flight; (3) that the trial court abused its discretion by the manner in which it treated Rivera's brain injury and mental impairments in denying him probation; and (4) that the trial court abused its discretion in declining to reduce his felony conviction to a misdemeanor.
After reviewing the record on the appeal, we find no merit to Rivera's contentions. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
At the time of the incident underlying the charges in this case, in November 2015, Rivera was in his early 20s and was living in an apartment with his parents, J.R.C. and F.R., and three siblings, C.R., J.R., and J.I.R. Rivera had been diagnosed with bipolar disorder in 2010, when he was 16 years old. The bipolar disorder caused him to experience mood swings, and he was prescribed daily medication to help him address his manic and depressive mood swings.
To protect their personal privacy interests, we refer to the victim and Rivera's other family members by their initials only. (See Cal. Rules of Court, rule 8.90(b).)
Also, in July 2015, a few months prior to the incident, Rivera was attacked by a number of young men. He sustained a skull fracture, which resulted in a traumatic brain injury. The traumatic brain injury caused permanent brain damage and left Rivera with a "neuro-cognitive disorder."
The family lived in a two-story apartment. The bedrooms were on the second level, and the kitchen, living room, and a bathroom were located on the first level.
On Thanksgiving Day, November 26, 2015, Rivera failed to take his medication. He also drank alcohol while celebrating the holiday with his family at an aunt's house. When the family returned to their home at approximately midnight after Thanksgiving Day, Rivera appeared to be somewhat intoxicated. At that point, Rivera was hungry. He asked his mother for money to buy something to eat. F.R. did not want Rivera to leave the house because it was after midnight, and told him to go to bed. Rivera became upset. Rivera's father J.R.C. overheard the interaction between Rivera and F.R. from the living room, and told Rivera to calm down and go to bed.
After the interaction with his mother, Rivera walked into the living room and began arguing with J.R.C. J.R.C. told Rivera to "calm down or . . . get out." After hearing the noise from J.R.C. and Rivera arguing, J.R. and J.I.R. came downstairs. J.R.C. was sitting on the couch arguing with Rivera, who was standing near J.R.C. holding a knife at his side. As the argument continued and escalated, Rivera raised the knife to J.R.C.'s neck and said, " 'I'm going to kill you.' "
J.I.R. then knocked the knife out of Rivera's hand and held Rivera down. Rivera tried to free himself, and J.R.C. assisted J.I.R. in holding Rivera down. During the struggle, Rivera was trying to get free and he hit J.R.C.; J.R.C. hit him back. J.I.R. held Rivera down for approximately four minutes, until Rivera eventually said, " 'Let me go. It's okay.' " J.I.R. then let go of Rivera. Rivera calmly walked up the stairs.
While upstairs, Rivera grabbed his backpack. He then returned downstairs. He appeared to J.R. to be "mad." He said something like, " 'I am going to kill you.' " However, he did not appear to be directing this statement to anyone in particular. He was looking to the left of J.I.R. when he said it, and no one was standing where he was looking.
Rivera then left the house, but soon returned and started banging on the door. The family members locked the doors. Either F.R. or J.R. called 911. J.R. spoke to the dispatcher when the call was answered. During that telephone call, J.R. told the dispatcher that Rivera was outside, had a large knife in his possession, and was "going crazy." J.R. also said that Rivera had said that he wanted to shoot and stab their father, and informed the dispatcher that Rivera had been drinking, and that he had failed to take his medication for his bipolar disorder that day. J.R. told the dispatcher, "I think once [Rivera] found out we were calling [the police] he like, kind of like ran off." F.R. said that she told Rivera to leave.
J.I.R. testified that he believed that Rivera left the home after J.R. called the police.
A San Diego County Sheriff's Deputy responded to the family's home. J.R.C. was visibly shaken, and he appeared distraught, scared, and worried about Rivera. Deputies searched for Rivera but were unable to locate him. J.I.R. told a deputy that Rivera had punched J.R.C. in the face, went to the kitchen and obtained a knife, and then held it to J.R.C.'s throat and said, " 'I'm going to kill you.' "
F.R. explained at trial that she believed it was necessary to call the police when Rivera was in the state he was in early that morning, and that she thought he posed a danger to himself and others. J.R.'s testimony on this point was similar. F.R. also explained that during other incidents in the past involving Rivera, she had received police assistance from a special mental health officer, but because of the holiday, no special mental health officer was on duty.
According to F.R., Rivera tends to respond to upsetting situations like a 10-year old child and throws tantrums. He sometimes grabs weapons from around their home, such as knives. In situations when Rivera is behaving in this manner, F.R. fears for the safety of her family. However, F.R. said that she called the police to try to get Rivera to a hospital, not because she wanted him to be "locked up."
J.R.C. testified that the knife Rivera had held to his neck was a few inches away and had not really concerned him. J.R.C. also explained that when Rivera gets upset, J.R.C. is not concerned that Rivera will hurt him, but rather, is concerned that Rivera might hurt someone else.
J.R.C. had told an investigator that he felt threatened.
2. Rivera's defense case
Rivera called Dr. Clark Richard Clipson to testify on his behalf. Dr. Clipson performed a psychiatric evaluation of Rivera and testified as an expert in psychology and neuropsychology. Dr. Clipson testified with respect to Rivera's mental health history, including the fact that he was diagnosed at age 15 with Attention Deficit Hyperactivity Disorder and had begun treatment for mental health issues at that time. In July 2010, Rivera threatened to commit suicide, and at that point, he was diagnosed with bipolar disorder, depressed type, and a doctor prescribed him medication.
Five years after being diagnosed with bipolar disorder, in July 2015, Rivera suffered trauma to his head, including an open skull fracture and facial bone fractures. Rivera lost his sense of smell, and his I.Q. was possibly reduced to 74, which placed him in the lowest 4th percentile.
Based on his evaluation of Rivera, Dr. Clipson diagnosed Rivera with cyclothymic disorder with anxious distress, which is a "mild form of bipolar disorder." Dr. Clipson also opined that Rivera had suffered "permanent brain damage as the result of [his] traumatic brain injury," and that Rivera also suffered from alcohol and cannabis use disorders and avoidant personality disorder.
With respect to the events on the night of the incident, Dr. Clipson testified, "I think what happened is, there is a strong emotional reaction. [Rivera] feels [a] very limited ability to know how to respond to that, and so yes[,] [a]t that point, he makes a choice to pick up the knife and hold it to his dad's throat, because he doesn't know what else to do." Dr. Clipson clarified that Rivera's "choice" of how to behave may not have been made "in a reflexive way, but, yes, in an impulsive kind of way." Dr. Clipson stated that "when we do things without thinking, without anticipating the consequences, we are not in complete control."
According to Dr. Clipson, when Rivera is in a relaxed state, he understands the potential consequences of holding a knife to someone, but in a "highly emotional state," he "is not thinking about all these different permutations going on." However, Dr. Clipson conceded that "even if [Rivera] didn't necessarily appreciate the consequences of his actions, . . . he does indeed understand what the consequences are."
When presented with a hypothetical situation mirroring the facts of this incident, Dr. Clipson opined that the hypothetical individual who held a knife to a family member's throat had the intent to express his frustration about the fact that he was not being permitted to eat, rather than having an intent to threaten someone. When presented with the same hypothetical and asked about the individual's consciousness, Dr. Clipson opined that the individual who said, " 'I want to kill you' " was "conscious when they [sic] said that." Later, Dr. Clipson explained that he "would say that it is not a black-and-white question, but under those hypothetical circumstances, the degree of consciousness is very small." When asked again to opine as to whether such an individual "understands they are doing it [i.e., making a threat]," Dr. Clipson said, "If you were to stop him and say, 'Were you making a threat right there,' he would say yes." The following colloquy between Dr. Clipson and the prosecutor then occurred:
"Q. So he is aware of his actions. It is diminished in the sense he is not thinking out the whole entire chain logically, the consequence?B. Procedural background
"A. It is diminished both because he is not thinking of the consequences as well as the impulsivity of what he is thinking and doing so that the amount of consciousness involved is relatively limited.
"Q. But it is not as if he was not self-aware?
"A. His self-awareness was very limited."
The San Diego District Attorney filed an information charging Rivera with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and making a criminal threat (§ 422; count 2). The information also alleged that Rivera committed the offenses while personally armed with a deadly weapon, a knife. (§ 1192.7, subd. (c)(23).) It was further alleged that Rivera had suffered a prior prison conviction (§§ 667.5, subd. (b), 668), a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668).
Further statutory references are to the Penal Code unless otherwise indicated.
The operative charging document was a second amended information.
A jury convicted Rivera of assault with a deadly weapon, and found true the enhancement allegation that he was personally armed with a deadly weapon. The jury acquitted Rivera on the criminal threats charge.
In a bifurcated proceeding, the trial court found true the prior conviction allegations.
The trial court sentenced Rivera to a term of seven years in prison, comprised of a two-year term for the assault with a deadly weapon conviction, and an additional five-year term with respect to the prior serious felony conviction. The court dismissed Rivera's prison prior and strike conviction enhancements.
Rivera filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court did not err in declining to instruct the jury on the defense of unconsciousness
1. Additional background
Defense counsel requested that the trial court instruct the jury with CALCRIM No. 3425, on the defense of unconsciousness based on mental disease or defect, as follows:
"The defendant is not guilty of both Assault with a Deadly Weapon in violation of Penal Code section 245(a)(1) as charged in count 1, and Criminal Threats in violation of Penal Code section 422 as charged in count 2 if he acted while unconscious. Someone is 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 a blackout, or an epileptic seizure, or involuntary intoxication, or mental disease or defect, [or] <insert a similar condition>).
"The defense of unconsciousness may not be based on voluntary intoxication.
"The People must prove beyond a reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was conscious, unless based on all the evidence, you have a reasonable doubt that he was conscious, in which case you must find him not guilty."
Defense counsel proposed inserting " 'failure to take prescription medicine' " in the blank space in the standard instruction.
Defense counsel argued that there was sufficient evidence to support the giving of the instruction on unconsciousness because Dr. Clipson had testified that there was evidence of both consciousness and unconsciousness at play during the violent incident. The prosecutor argued that Dr. Clipson had said only that there may have been limited consciousness, in that Rivera's mental defect may have limited his ability to reason while experiencing heightened emotions. According to the prosecutor, Dr. Clipson's testimony was that Rivera was conscious and aware of his actions, even if that awareness was limited.
The trial court stated that it understood Dr. Clipson's testimony as stating that there are varying levels of consciousness, and that at any given moment, "there is a degree of consciousness and there is a degree of unconsciousness." The court noted that ultimately, when presented with the hypothetical and asked whether the individual is conscious or not, Dr. Clipson said, " 'I would say that it is not a black-and-white question, but under those hypothetical circumstances, the degree of consciousness is very small.' " (Italics added.)
The trial court ultimately agreed with the prosecutor that Dr. Clipson's testimony did not provide sufficient evidence that Rivera had acted while unconscious to support giving an unconsciousness instruction. The court also noted that other evidence regarding Rivera's conduct and speech at the time of the incident would not support a finding that he was unconscious. The court declined to instruct the jury on unconsciousness as requested by the defense.
2. Analysis
The trial court has a "duty to instruct on all principles closely and openly connected with the facts of the case, and which are necessary for the jury's understanding of the case." (People v. Boyer (2006) 38 Cal.4th 412, 468-469.) Additionally, "the court must instruct on an affirmative defense, specifically including unconsciousness, even in the absence of a request, 'if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (Ibid.) It is clear from this rule that the court is not required to instruct on a defense that is not supported by substantial evidence. (See People v. Petznick (2003) 114 Cal.App.4th 663, 677.) In order to determine whether an instruction is required, the court does not assess the credibility of witnesses, but rather, simply asks whether there was evidence which, if credited by the jury, would be sufficient to raise a reasonable doubt. (People v. Salas (2006) 37 Cal.4th 967, 982.)
We independently review the question of whether the trial court erred by failing to instruct on a defense. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
There is a presumption that a person who appears to act in an apparent state of consciousness is conscious. (People v. Hardy (1948) 33 Cal.2d 52, 63-64.) Therefore, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness. (People v. Cruz (1978) 83 Cal.App.3d 308, 330-331 (Cruz).) "Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime." (People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).)
"To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.' " (People v. Halvorsen (2007) 42 Cal.4th 379, 417 (Halvorson).) The law is clear that in cases of unconsciousness caused by blackouts, involuntary intoxication, sleepwalking, or even epilepsy, an instruction is warranted where there is substantial evidence. (See People v. Sedeno (1974) 10 Cal.3d 703, 717 ["An unconscious act within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional"], overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142; Cruz, supra, 83 Cal.App.3d at p. 330 [unconsciousness instruction should be given where there is evidence of involuntary intoxication]; People v. Freeman (1943) 61 Cal.App.2d 110, 118 [jury instruction required where the defendant's unconsciousness was due to epilepsy].) Courts have also concluded that the giving of an unconsciousness instruction may be appropriate when a defendant's alleged unconsciousness results from mental illness or an "unsound mind." (People v. James (2015) 238 Cal.App.4th 794, 805-810 (James).)
Although there remains some question about what evidence would support the giving of an unconsciousness instruction when the alleged unconsciousness stems from a mental illness or "unsound mind" (see James, supra, 238 Cal.App.4th at pp. 805-810), there is no question that there must be, at a minimum, some evidence presented at trial that would permit a finder of fact to conclude that the defendant was " 'not, at the time [of the offense], conscious of acting.' " (Halvorsen, supra, 42 Cal.4th at p. 417.)
In this case, there was no dispute that Rivera suffers from both bipolar disorder and a traumatic brain injury. However, in order to be entitled to an instruction on the defense of unconsciousness, Rivera was required to present some evidence that, at the time of the incident, he was not conscious of his actions. No such evidence was presented. Specifically, Dr. Clipson never testified that Rivera was unaware of his conduct at the time of the actions at issue. Rather, Dr. Clipson testified that Rivera's decision-making was not based solely on rational choice, but was also influenced by his emotions, his possible intoxication, and a limited ability to see solutions. Dr. Clipson did not testify that Rivera's conduct was not volitional; rather, he testified that Rivera's conduct was based on influences that might be different from someone who was acting wholly rationally. In fact, Dr. Clipson expressly stated that Rivera would "[t]o some degree" be "aware of what he was doing." He also opined that "the degree of consciousness is very small," which is a concession that there was some consciousness on Rivera's part.
Nevertheless, Rivera argues on appeal that Dr. Clipson's testimony could lead a reasonable juror to conclude that "Rivera was not fully conscious of his actions" on the night of the incident, thereby entitling him to an instruction on unconsciousness. However, Rivera has not cited any authority that would support the notion that a defendant is entitled to an unconsciousness instruction if there is evidence that he or she was "not fully conscious" of his or her actions at the time of the alleged criminal incident, and we have not independently found any such authority. Indeed, case law demonstrates that the defense is available to a defendant who was not conscious (i.e., was unconscious) at the time of the act. (Halvorsen, supra, 42 Cal.4th at p. 417 ["To constitute a defense, unconsciousness need not rise to the level of coma [or other inability to move, but] can exist 'where the subject physically acts but is not . . . conscious of acting' "].)
In Rogers, supra, 39 Cal.4th at page 887, the defendant argued that his own testimony "that he had no independent memory of the Clark killing from the time he pushed the victim out of the truck, coupled with expert testimony suggesting that defendant 'blacked out' and could not remember the incident, warranted an unconsciousness instruction with respect to the Clark count." The Supreme Court disagreed that this evidence was sufficient to warrant an instruction on unconsciousness. The Supreme Court explained that the expert's testimony, "fairly read, does not imply that [the defendant] was unconscious during the events," but instead "suggests [that the defendant] was aware of the events as they were occurring, but reacted to them emotionally rather than logically." (Id. at pp. 887-888.) The Court noted that the expert testified that "the killing was an emotional, 'impulsive heat of passion event,' and Dr. Bird testified the killing was an impulsive, emotional act of passion and fear." (Id. at p. 888.) Much like the testimony of the experts in Rogers, Dr. Clipson's testimony does not state or even imply that Rivera was unconscious during the incident. Rather Dr. Clipson testified that Rivera was acting impulsively and emotionally, was not making fully rational choices, and experienced an "absence of thought." Dr. Clipson, however, studiously avoided stating anything that would indicate that Rivera was unconscious at any point during the incident. As a result, we conclude that the trial court correctly determined that Dr. Clipson's testimony did not support the giving of an unconsciousness instruction in this case.
Based on the Supreme Court's quotations from and summary of the various experts' testimony at trial, it appears that the reference to the defendant having " 'blacked out' " was the defendant's characterization of what the expert testimony suggested, not a description by any of the experts of what the defendant experienced during the killing.
Further, the fact that J.I.R. stated that Rivera was not looking at anyone nor appearing to direct his threat "I want to kill you" toward anyone in particular, and that he had a blank stare, and the fact that Rivera's mother testified that he was reacting like a child having a temper tantrum also do not support the giving of an unconsciousness instruction. First, the testimony that Rivera was responding like a child having a temper tantrum does not reasonably lead to an inference that he was unconscious at any time during the event. Second, evidence that Rivera had a blank stare at some point after he had already held a knife to his father's throat and threatened to kill him is simply insufficient, by itself, to support an inference that he was not aware of his actions at the time of the incident that underlies the charge in this case. Given Dr. Clipson's testimony that Rivera was at least minimally aware of his actions, the mere fact that Rivera was behaving strangely or staring off into space sometime after the assault in question is insufficient to establish that Rivera was not conscious of his actions. Dr. Clipson at no time suggested that it was even possible that Rivera was wholly unconscious of his conduct during the incident.
The Rogers court rejected the idea that a combination of expert testimony that failed to imply that the defendant was unconscious at the time of the killing, coupled with the defendant's testimony that he did not have a memory of the event, was sufficient to require the giving of an instruction on unconsciousness. (Rogers, supra, 39 Cal.4th at pp. 887-888.) The combination of Dr. Clipson's testimony, which fails to imply that Rivera was unconscious at the time of the incident, coupled with additional ambiguous testimony about Rivera having a blank stare after the fact, is even less compelling than the evidence in Rogers, and is thus clearly insufficient to require an unconsciousness instruction.
Rivera attempts to compare the evidence in this case with that presented in People v. Gana (2015) 236 Cal.App.4th 598 (Gana) and James, supra, 238 Cal.App.4th 794. In our estimation, both Gana and James are distinguishable from the scenario presented here. In Gana, the appellate court concluded that the trial court erred in failing to instruct the jury on the defense of unconsciousness. In that case, the defendant testified that she had "only a limited recollection of the event," saying that she remembered holding the gun and hearing a shot. (Gana, at p. 609.) She testified that she did not remember loading the weapon and did not remember aiming and firing the gun at any of the victims (id. at p. 604). In addition, there was evidence that just after the shootings, the defendant exclaimed, " ' "What—what did I do[?]" ' " (Id. at p. 602.) There was also lay witness testimony to support the defendant's testimony. For example, there was testimony that when the defendant shot her husband, her eyes were wide open but her face lacked emotion, and that when she was interviewed by police and attended to by paramedics, she had a " 'thousand mile stare' " and was unresponsive. (Id. at pp. 602-603, 609.) Further, the defense presented an expert who testified to the possible effects of the multiple medications that the defendant was taking at the time of the incident. Specifically, the expert "identified the medications [the] defendant was taking to combat cancer and to overcome the adverse effects of the chemotherapy, and explained how these medications could affect her mental state," "concluded [the] defendant was suffering from a psychosis likely caused by 'a combination of events, combination of factors, including both her depression as well as the medications that she was taking," and further concluded that " '[i]t appear[ed] that she was experiencing a delirium, which is a kind of fluctuating level of consciousness, due to medical illness that caused her to . . . have worsening symptoms of depression and worsening psychoses.' " (Id. at p. 610.)
A majority of the panel in Gana ultimately concluded that the instructional error was harmless. (Gana, supra, 236 Cal.App.4th at p. 610.)
In this case, in contrast, Rivera did not testify, and there is thus no evidence from the defendant as to his memory of the event or his subjective experience of it. In addition, the only lay testimony that could arguably support the possibility of unconsciousness is a single witness who stated that sometime after holding the knife to his father's throat, Rivera had a "blank stare." However, Rivera's own expert avoided stating that Rivera may have ever been entirely unconscious during the incident, instead expressly indicating that he had some, at least minimal, level of consciousness throughout. The evidence thus is wholly insufficient to support an inference that Rivera was unconscious at any point during the incident.
Further, in James, supra, 238 Cal.App.4th 794, which Rivera contends is the case most similar to his situation, there was sufficient evidence from which a reasonable factfinder could have concluded that the defendant was unaware of his actions and had acted while in an unconscious state. The police had received a call that the defendant had been "attempting to climb the exterior of the building," and both the victim and an officer testified that the defendant "was running around the parking lot 'crashing his head into cars and garbage cans.' " (Id. at p. 810.) During the entire incident and during the defendant's subsequent arrest, the defendant "was never responsive to . . . commands, and was mumbling incoherently." (Ibid.) Further, an expert testified that the defendant "had suffered from a seizure disorder since age 17 and was experiencing a severe psychotic episode" at the time of the incident, and, most significantly, that the defendant " 'did not have awareness of what took place' " (italics added) during the incident. (Ibid.) Again, in this case, Dr. Clipson very carefully avoided stating that he believed that Rivera was not aware of his actions during the incident. The evidence regarding the defendant's possible unconsciousness in James was thus significantly different from the evidence presented in this case.
Because the evidence presented at trial was not sufficient to support a finding that Rivera was unconscious of his actions at any time during the offense, the trial court did not err in declining to instruct the jury on the defense of unconsciousness. We therefore also reject Rivera's contention that the failure to give the instruction denied him of a meaningful opportunity to present a defense, in violation of his due process rights. A defendant has no constitutional right to have the court instruct the jury on a defense theory that is unsupported by the evidence. (People v. Ayala (2000) 23 Cal.4th 225, 283.) B. The trial court did not err in instructing the jury regarding flight
Rivera contends that the trial court erred in instructing the jury with CALCRIM No. 372, on flight as evidence of consciousness of guilt. According to Rivera, there was insufficient evidence to support the giving of the flight instruction.
1. Additional background
Defense counsel objected to the trial court instructing the jury with CALCRIM No. 372, the flight instruction. Defense counsel argued that the evidence did not demonstrate that Rivera fled, but instead, showed that he was told to leave, and that he had been locked out of the house and was trying to get back in.
The prosecutor noted that the evidence demonstrated that Rivera had not stayed in the area to wait for police officers to arrive, and that at least one witness had stated that Rivera fled when he heard that his family had called the police.
The trial court ruled that it would instruct the jury on flight, over defense counsel's objection, concluding that, "There [are] two different views as to what happened. He left because he was told to leave, or he left because he knew they were calling the police, and I will give it, and the jury can handle the evidence how they see fit, because it requires them to conclude that he fled before they draw any assumptions from that or conclusions."
The trial court instructed the jury with CALCRIM No. 372 as follows: "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
2. Analysis
Whenever the prosecution relies on evidence of flight as tending to show a defendant's guilt, the trial court must instruct the jury with an instruction on flight. (§ 1127c; People v. Mendoza (2000) 24 Cal.4th 130, 179.) A flight instruction is generally proper " ' "where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." [Citations.] " '[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.' " ' " (People v. Cage (2015) 62 Cal.4th 256, 285.) The facts of each case determine whether it is reasonable to infer that a defendant's flight shows a consciousness of guilt. (People v. Mason (1991) 52 Cal.3d 909, 941.)
We review de novo the trial court's decision to instruction on flight. (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Despite Rivera's claims on appeal of insufficient evidence to support giving a flight instruction, the record discloses evidence from which a jury could reasonably conclude that Rivera fled the scene after assaulting his father as a result of his consciousness of guilt. Specifically, when J.R. spoke with the 911 dispatcher on the telephone, she described the events as they were taking place. She told the dispatcher that Rivera had left the house, only to return and begin banging on the doors while holding a kitchen knife. At some point the dispatcher asked J.R. whether Rivera was still outside the house, and J.R. replied, "No. I think once he found out we were calling he like, kind of like ran off."
In addition, there was evidence to demonstrate that the family had called the police for help during prior incidents involving Rivera. J.R. explained that they had called the police in the past, and that they had received assistance from a mental health officer. F.R. also testified that she had called the police during the incident at issue in order to speak with a mental health officer. Thus, there is evidence in the record not only that J.R. believed that Rivera knew that family members were calling the police, but that he might have had a reasonable expectation that they might do so, given that they had done so in the past.
Further, although Rivera places great emphasis on the fact that F.R. testified that she told Rivera to leave the house, the evidence also demonstrates that Rivera did initially leave, but then returned and was banging on the doors. Thus, even if one believed that F.R. did indeed tell Rivera to leave, there was evidence to demonstrate that he left but remained in the vicinity of the home, and that it was only after J.R. was on the telephone with a police dispatcher that Rivera completely left the scene. In addition, deputies spent hours searching for Rivera, unable to find him anywhere near his home. Based on this evidence, one could clearly reasonably infer that Rivera was intentionally evading police and did not want to be found.
Given this record, the trial court did not err in instructing the jury on flight. The jury had to decide how much weight to give to Rivera's family members' testimony and how to interpret the evidence. The instruction provided by the trial court permitted the jury to do just this. Further, the jury was also instructed with CALCRIM No. 200, which includes the following admonishment: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Thus, the jury instructions, taken as a whole, simply allowed the jury to decide what the facts were, and, if they determined that Rivera did flee, to decide whether his flight indicated a consciousness of guilt. C. The trial court did not abuse its discretion in denying Rivera probation
Rivera contends that the trial court should not have considered his performance on probation in 2013 and 2014, which occurred before his traumatic brain injury, because that brain injury changed him, such that his past performance should not be considered to be a reliable indicator of his future performance on probation. On the other hand, Rivera also contends that the trial court should not have considered the neuropsychological changes that resulted from his brain injury as a consideration in denying him probation.
As an initial matter, Rivera has forfeited both contentions, because neither was raised in the trial court at the time of sentencing. (See People v. Scott (1994) 9 Cal.4th 331, 353-354.) However, even on their merits, both arguments fail.
1. Additional background
At sentencing, the trial court considered the probation officer's report, letters that were submitted on Rivera's behalf, Rivera's statement in mitigation, and the People's statement in aggravation. The trial court also heard impact statements made by Rivera's family members in which they requested that the court order that Rivera receive medical assistance and rehabilitation, rather than be sentenced to prison.
Defense counsel requested that Rivera's conviction be reduced to a misdemeanor, or that the court strike his prior convictions. According to defense counsel, the case had been overcharged, given that it was primarily a family issue and Rivera's family desired that Rivera receive rehabilitation and not be incarcerated. Defense counsel also argued that "everything about the character of this case is a misdemeanor." In addition, defense counsel noted that the probation officer had written the probation report without having read Rivera's psychological evaluation. Finally, defense counsel focused on the underlying medical and mental health issues that were at play in this case.
The prosecutor disagreed with defense counsel's view of the case, arguing that Rivera had held a knife to his father's neck, which, she contended, is not misdemeanor conduct, and that he had returned to the home days later, with a knife, and had threated the family again. She acknowledged that the case involved a family issue, and that there were mental health issues in play as well, but argued that the jury had convicted Rivera of a felony charge. The prosecutor observed that Rivera has been unable or unwilling to address his mental health issues, and instead self-medicates with alcohol or drugs, which "creates a high potential for violence."
The probation officer also acknowledged Rivera's traumatic brain injury, but noted that his criminal behavior had been increasing in seriousness. She also mentioned that she was concerned with Rivera's ability to "successfully complete the program within the community if he's not able to maintain his needed medication," and instead, continues to have daily access to alcohol and marijuana.
The trial court noted that it had a wide variety of options in sentencing Rivera. The court refused to reduce the offense to a misdemeanor, stating: "This is not misdemeanor conduct. It involves the use of a weapon. And most importantly, his prior record does not support this case being treated as a misdemeanor, not just for the conduct, but also for his past criminal behavior. So the motion to reduce to a misdemeanor is denied."
The court considered granting Rivera probation, but noted significant concerns about the fact that Rivera had failed to satisfactorily perform while on probation and parole in the past. The court also observed that "defendant does need help," but that he had performed "extremely poor[ly]" on probation before.
The court proceeded to discuss Dr. Clipson's evaluation of Rivera, noting that Dr. Clipson was "an incredible witness." However, the court understood that the doctor was acknowledging that the impairments in functioning that Rivera suffers from, including impairments "with his attention span, which affects his ability to comply with terms of probation, memory issues, working memory issues, problem solving and reasoning," ultimately "interfere with his ability to function independently and effectively." The court stated that this meant that Rivera would "have trouble managing on probation." The court denied probation.
After denying probation, the trial court struck Rivera's strike prior conviction and his prison prior conviction.
2. Analysis
We review a trial court's decision to deny probation for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1020-1121.) We will affirm a trial court's decision regarding probation as long as the record shows that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law. (People v. Carmony (2004) 33 Cal.4th 367, 378.)
"The decision to grant or deny probation requires consideration of all the facts and circumstances of the case." (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) California Rules of Court, rule 4.414 sets forth the criteria that the trial court should consider in deciding whether to grant probation. Rule 4.408(a) provides that a court may consider factors not listed in rule 4.414, provided that those factors are "reasonably related" to that decision. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313.) " 'The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]' [Citation.] Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable." (Ibid.)
Further rule references are to the California Rules of Court.
Rule 4.414 includes a number of "[f]acts relating to the defendant," such as:
"(1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;
"(2) Prior performance and present status on probation, mandatory supervision, postrelease community supervision, or parole;
"(3) Willingness to comply with the terms of probation;
"(4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors." (Italics added.)
Rivera complains that the trial court should not have considered his prior poor performance on probation in 2013 and 2014 as a factor against him receiving probation in this case because his subsequent traumatic brain injury has changed his essential nature, and he is "not the same person he was when he received probation in his 2013 case."
The trial court acknowledged Rivera's traumatic brain injury, and the significant effect that it has had on his ability to function in the world. The court concluded, however, that the evidence did not demonstrate that Rivera became a wholly different person, such that his prior criminal conduct, and prior unsuccessful performance on probation, was no longer relevant to an assessment of his suitability for probation after the brain injury. Further, it was clear that Rivera performed poorly on probation prior to the brain injury, but also performed poorly on parole even after the brain injury. In other words, Rivera failed to satisfactorily comply with supervision both before and after his traumatic brain injury.
Moreover, to the extent that Rivera's brain injury did change him, the evidence tended to show that it changed him in a manner that made him less likely to successfully complete a term of probation. Rivera argues that the trial court should not have considered his mental impairments and how any such impairment might make it more difficult for him to successfully manage probation. However, the rules provide that a trial court is to consider a defendant's "mental faculties" in assessing whether a particular defendant is a good candidate for probation. (See rule 4.414 ["Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant," and include the defendant's "[a]bility to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors" (italics added)]; see also, rule 4.409 ["Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise"].)
Rivera suggests that the court's analysis of the relevant factors here would "[l]imit[ ] probation only to smart defendants." However, the court was not concerned with Rivera's I.Q., but, rather, the effect of his brain injury on his ability to "function independently and effectively." The court noted that Rivera had been unable to comply with his medication regimen or care for himself with respect to his mental impairments and observed that this did not bode well for successful completion of probation. The court clearly did not abuse its discretion by considering these factors in assessing whether Rivera was a suitable candidate for probation. Indeed, Rivera's doctor opined that he required supervision at a level greater than that which would be provided by probation, and had recommended that Rivera be placed in a "supervised, dual-diagnoses, residential treatment setting through the Mental Health Behavioral Court." D. The trial court did not abuse its discretion in declining to reduce Rivera's felony conviction to a misdemeanor
Rivera contends that the trial court abused its discretion when it refused to reduce his felony conviction for assault with a deadly weapon to a misdemeanor conviction under section 17, subdivision (b).
Assault with a deadly weapon is a "wobbler" offense because it is punishable by "imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment." (§ 245, subd. (a)(1); see People v. Park (2013) 56 Cal.4th 782, 790.)
Section 17, subdivision (b) contains the following relevant language pertaining to wobblers: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170."
The trial court possesses "broad discretion" when determining whether "to reduce a felony wobbler offense to a misdemeanor." (People v. Clancey (2013) 56 Cal.4th 562, 579.) In exercising this discretion, "those factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) The trial court may also consider the general objectives of sentencing, including securing restitution for the victims of crime. (Id. at p. 978, fn. 5; see also Cal. Rules of Court, rule 4.410(a)(6) ["Securing restitution for the victims of crime" is one of the general objectives of sentencing].)
"A convicted defendant is not entitled to the benefits of section 17(b) as a matter of right." (People v. Tran (2015) 242 Cal.App.4th 877, 892 (Tran), italics omitted.) The trial court "is not required to grant . . . relief" under section 17, subdivision (b). (Tran, at p. 892.) "Rather, a reduction under section 17(b) is an act of leniency by the trial court, one that 'may be granted by the court to a seemingly deserving defendant, whereby he [or she] may escape the extreme rigors of the penalty imposed by law for the offense of which he [or she] stands convicted.' " (Ibid.)
We review a trial court's ruling under section 17(b) for abuse of discretion. (Alvarez, supra, 14 Cal.4th at p. 977.) " '[A] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " (Id. at p. 978.)
The trial court denied Rivera's request to reduce his felony conviction to a misdemeanor, stating, "This is not misdemeanor conduct. It involves the use of a weapon. And, most importantly, his prior record does not support this case being treated as a misdemeanor." Rivera cannot demonstrate that the trial court abused its discretion in this regard. The court essentially concluded that the current offense was serious and troubling—i.e., the conduct involved was "not misdemeanor conduct." Further, the court reasonably considered the fact that this was not an isolated incident, and that Rivera's inability to manage his medications and his use of drugs and alcohol contributed to his violent responses to situations in which he became angered. The trial court reasonably concluded that Rivera's conduct posed a serious safety threat to his family and possibly to others, as well, and that his offense was more properly treated as a felony, not a misdemeanor, given Rivera's failure to address these issues. We see no abuse of discretion in the court's decision not to reduce the felony conviction to a misdemeanor.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
AARON, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.