IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE A123166

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1 Filed 3/2/11 P. v. Marlin CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JEFFREY MARLIN, Defendant and Appellant. A (Mendocino County Super. Ct. No. MCUKCRCR ) Michael Jeffrey Marlin appeals from his conviction of second degree murder, first degree burglary, and felony possession of a firearm. Marlin argues the prosecutor committed misconduct and denied him due process by telling the jury the defense had introduced no evidence corroborating his version of events, when both the prosecution and defense had informed the court neither could locate the corroborating witness. He also maintains the court erred in denying his motion for new trial and in not staying the sentence imposed for his burglary conviction. We affirm. PROCEDURAL BACKGROUND The Mendocino County District Attorney charged Marlin by information with first degree murder (Pen. Code, 187, subd. (a), ), 1 first degree burglary ( 459, 460), and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The information also alleged Marlin used and personally discharged a firearm causing great 1 All further statutory references are to the Penal Code unless otherwise indicated. 1

2 bodily injury within the meaning of sections , subdivision (d), and , subdivision (a). A jury found Marlin guilty of second degree murder, first degree burglary, and possessing a firearm as a felon, and found the firearm use allegations to be true. Marlin moved for a new trial on multiple grounds, including newly discovered evidence. The court denied his motion. The court sentenced Marlin to a total term of 48 years to life in state prison. The court imposed a sentence of 15 years to life for the second degree murder conviction and 25 years to life for the firearm use/great bodily injury enhancement. ( , subd. (d).) On the burglary conviction, the court imposed the four-year midterm, plus four years on the firearm use enhancement both running consecutively. ( , subd. (a).) The court also imposed a concurrent two-year sentence for the conviction of being a felon 2 in possession of a firearm. ( 12021, subd. (a)(1).) This timely appeal followed. FACTUAL BACKGROUND On December 16, 2007, 3 Marlin shot and killed James Redenius at Redenius s home in Willits. Marlin admitted the killing, but testified it was in defense of his mother, Kelly Marlin. 4 The events leading to the shooting began on December 12, when Marlin and Kelly went to Al s Redwood Room for karaoke night. Sometime after midnight, Kelly stepped outside while Marlin was paying their bill. Someone entered the bar and said some ladies just got beat up, so Marlin ran outside. He found his mother with two other women arm in arm crying. Kelly s face was all swollen,... she had a bloody chunk of skin out of her nose, [and] she had scrapes on her forehead and elbows. She told 2 Marlin had one prior felony conviction based on his guilty plea to a charge of selling psilocybin mushrooms in Unless otherwise noted, all further dates referenced are in We refer to Kelly Marlin by her first name in the remainder of the opinion for clarity. 2

3 Marlin a guy grabbed her by the throat, threw her to the ground, and started kicking her in the face after she tried to intervene when she saw Redenius punching a woman in the face. Kelly was crying and very upset. The two other women were Crystal Mayer and Amanda Oswald. Oswald was the woman Kelly saw Redenius punching and was Redenius s pregnant girlfriend. Crystal told Marlin Redenius pulls this shit all the time, that he... hits... and/or kicks women to get their boyfriends to fight him. Willits Police Officer Mark Heaney arrived at the scene at about 2:00 a.m. He saw Kelly, who appeared to be very upset, crying and had possible minor scrapes and redness on the left side of her face. It appeared to Heaney Kelly was highly intoxicated and unable to stand on her own. Heaney did not call for emergency medical assistance. Heaney spoke to Marlin at the scene. Heaney explained police were searching for Redenius, and if they did not locate him that night he would be writing a report and that charges would be brought up against him. Marlin who was very angry, said if the police did not catch Redenius, we re going to get him, or something to that nature. Redenius s reputation for violence was well known in the local community, both to law enforcement and civilians. Mendocino County Deputy Sheriff Jerry Verdot testified he had known Redenius his entire life, and was aware of his reputation for violence. Redenius s ex-wife testified he was violent toward her and she obtained a restraining order against him. A 50-year-old woman who lived across the street from Redenius testified he came to her door, demanded she pick up trash scattered by garbage collectors, and punched her when she refused. She contacted police, but no action was taken against Redenius. John Simmons, who did not previously know Redenius, was headbutted by him in a bar after Simmons refused to fight him. Simmons filed a police report, but no charges were filed against Redenius. Redenius then stalked him, and assaulted him on two more occasions. Simmons called police, but still no charges were filed. Marlin learned of Redenius s violent reputation after the attack on his mother at Al s Redwood Room. A woman whose sister was formerly married to Redenius told 3

4 Marlin throughout their marriage he beat the shit out of her and threatened to kill her. There w[ere] police reports about it. The police never really helped her out. [ ]... [ ]... She had a restraining order against the guy. A man named Trevor told him Redenius was a bad guy and that most people don t testify against him because he goes after them. Eric Brown told Marlin Redenius was a fucking weirdo. I wouldn t want to fuck with him. On December 16, Kelly telephoned Marlin and they arranged to go out for pizza. They spent about four to five hours at a pizza parlor in Willits, where Marlin drank quite a bit at least eight beers. With Kelly driving, they left in her car with a pizza to deliver to Marlin s brother. Marlin did not know where Redenius lived, but Kelly pointed out his home. Marlin jumped out of her car and... ran up to the door. He began pounding on the door with his fist, and kicked the door once. Through a window in the door, Marlin saw a man walk toward the door, but he did not open it. In the meantime, Kelly pulled her car behind Marlin. She jumped out of the car and screamed Mike, get in the car now. Marlin started to get in the car, when Redenius came out the front door. Kelly went up to Redenius and said I m sorry, we have the wrong place. [ ]... [ ] It s a mistake. Marlin saw Redenius start to attack Kelly, and she was thrown to the ground. When Marlin saw his mother thrown to the ground, he reached in the car and grabbed out her pistol, which was in a bag behind the seat. Marlin knew the gun was there that evening because Kelly had told him. Marlin did not know where or how she got the gun, how long she had it, or when he found out she had it. After he grabbed the pistol, he saw Redenius attacking his mother, who was on the ground on her back. Redenius then pointed a gun at Marlin and fired. Marlin took a shot at him. He did not know if he fired the first shot or not, but both guns fired. Redenius turned and ran inside. Marlin followed, right on his tail. Redenius turned left down a hallway, and Marlin stopped at the corner. He pointed the gun and looked directly down the hallway. Redenius turned around, pointed his gun at 4

5 Marlin, and ducked behind and slammed a door. Marlin fired five shots into the door as Redenius was shutting it [b]ecause he had a gun and I didn t want to get shot. After emptying the gun of bullets, Marlin left the residence. His mother and the car were no longer outside. At that point, Marlin did not know his shots had hit Redenius. He took off, and walked all night. After contacting his brother the next day, Marlin turned himself in. Officer Heaney, who had also responded to the incident at Al s Redwood Room, arrived at the shooting scene. He and Kelly recognized each other, and Kelly told him My son did it, before Heaney asked her anything. 5 Deputy Sheriff Jerry Dean Verdot also responded to the scene. He saw a wounded man, who he recognized as Redenius, on the front porch of a residence. As Verdot applied a pressure bandage to the wound on Redenius s chest, Redenius said I m going to die on this porch, Dean. Redenius told him a man he had never seen before came to his door and they began arguing. Redenius told the man to get the hell out of there, and the man pulled out a gun and shot him. Redenius went through his house, out the back window, and to a neighbor s house to get help. Redenius was pronounced dead at the hospital at 8:40 p.m. that evening. DISCUSSION A. Prosecutorial Misconduct Marlin argues the prosecutor committed misconduct and denied him due process by urging the jury to reject [his] claim of provocation and defense of another because there were no eyewitnesses who could corroborate his story of the shooting. Marlin claims this was misconduct because the prosecution knew of Marlin s mother s statement to police an hour after the crime corroborating his version of events in some aspects. Marlin s mother, however, did not testify at trial, and her claimed corroborating statement to police was not admitted. 5 The court excluded other statements and an interview Kelly gave to police, allowing only her spontaneous statement to Officer Heaney. 5

6 A prosecutor s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.) As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion and on the same ground the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor properly may argue defendant s version of events was less believable because it was not corroborated. It is proper to comment on defendant s failure to introduce material evidence or to call logical witnesses. (People v. Brady (2010) 50 Cal.4th 547, 566.) It is now well established that although Griffin [6] prohibits reference to a defendant s failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.] [Citations.] (People v. Vargas (1973) 9 Cal.3d 470, 475.) A prosecutor s argument that a defendant s version of events was less believable because there was no corroboration from other sources is not misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 434.) 6 Griffin v. California (1965) 380 U.S

7 Marlin claims the following portion of the prosecutor s closing argument was misconduct. The only evidence you ve received that would support any type of legal justification has come from one source, and one source alone. The defendant, in his testimony. [Kelly] was on her back with her hands up and her knee was bleeding and [Redenius] was leaning over her holding a small, black object when Mike Marlin fired the fatal shot. That s what you just heard. That s why he s not guilty. But let s take it apart for a minute.... [ ] Before you accept any fact as true, you have to consider the source. On her back with her hands up. Where s the evidence of that? Not in the spontaneous statements that she makes to the people she runs to hysterical telling them telling them that her son just killed this man, not in the statements of the victim as he s collapsing.... Where are we getting that fact that she s on her back with her hands up? Him, the defendant. [ ]... [ ] Well, her knee is bleeding in this photograph. That s indisputable.... But what do we know about that happened? It came from the defendant. Oh, we know that the victim threw her down because that s what he does. That s his MO. He throws people to the ground. Well, we didn t hear it from the person whose knee was bleeding. And we didn t hear it from the person who allegedly did. 7 Relying on People v. Varona (1983) 143 Cal.App.3d 566 (Varona) and People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett), Marlin asserts this portion of the argument was misconduct and violated his due process rights because the prosecutor knew Kelly, in her excluded statement to Officer Jacob Donahue, had corroborated Marlin s testimony that Redenius threw her to the ground. Neither these cases, nor Kelly s excluded statement, aid his argument. In Varona, the defendants asserted a consent defense to charges of rape and oral copulation, claiming the victim solicited them to engage in acts of prostitution. (Varona, supra, 143 Cal.App.3d at p. 568.) The court, agreeing with the prosecutor s objections, 7 At this point, defense counsel objected: Judge, I have to object. That s improper. That s based on a court ruling. The court then instructed the jury the comments of counsel were not evidence. This was sufficient to preserve the issue, and accordingly we find no ineffective assistance of counsel in failing to further object. 7

8 excluded evidence the victim had been convicted of prostitution and was on probation at the time of trial. (Ibid.) In closing argument, however, the prosecutor argued there was no evidence that the woman was a prostitute, (ibid.) although he had seen the official records and knew that he was arguing a falsehood. (Id. at p. 570.) The court acknowledged in a proper case, a prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story. But we know of no case where such argument is permissible except where a defendant might reasonably be expected to produce such corroboration. (Ibid.) The court reversed, holding it had been error to exclude the prostitution evidence under Evidence Code section 782, and that the prosecutor s argument went beyond the bounds of any acceptable conduct. (Varona, at pp ) Similarly in Daggett, a child molestation case, the court would not allow the defendant to introduce evidence the 11-year-old victim was molested by others when he was five years old. The defendant sought to negate the inference the victim was able to accurately describe certain sexual acts he would otherwise not be expected to have knowledge of because he must have learned of these acts through the defendant. (Daggett, supra, 225 Cal.App.3d at p. 757.) In closing argument, the prosecutor stated: Inappropriate sexual behavior is not inherent in children. It is learned... [ ]... [ ] in the same way as they learn other behavior. They are exposed to it. It is predominantly learned from being exposed to it,... therefore, corroborating the testimony of [the victim.] (Id. at p. 756.) The court held the trial court erred in failing to hold a hearing regarding the similarity of the acts of prior molestation, and held the prosecutor s argument was improper because it asked the jurors to draw an inference that they might not have drawn if they had heard the evidence the judge had excluded. (Id. at pp ) Daggett and Varona each involved erroneous evidentiary rulings on which the prosecutor improperly capitalized during his closing argument. (People v. Lawley (2002) 27 Cal.4th 102, 156.) In contrast, the claimed corroborating evidence in this case was not improperly excluded the parties do not dispute it was hearsay not falling within 8

9 any exception. More significantly, the prosecutor in this case did not argue a known falsehood to the jury. (See Varona, supra, 143 Cal.App.3d at p. 570.) In Kelly s excluded statement to Officer Donahue, she never indicated she was thrown to the ground by Redenius. Instead she told him could not remember how she injured her left knee, or if she fell, but thought Redenius might have knocked her down when he shoved her away from [the] residence and that s how she got the abrasion that appeared fresh on her left knee. (Italics added.) She also stated after Redenius pushed her, [w]hile backing away from the door she heard what sounded like a gunshot. She described it as a bang. She still had a visual on [Redenius]. He turned around and ran back into his residence. 8 Kelly s excluded statement did not corroborate Marlin s testimony at trial. Marlin testified he saw Redenius hit Kelly. It looked like he he punched her, and she got thrown to the ground and was on her back. Marlin then grabbed the gun from his mother s bag and shot Redenius, who turned and ran into his house. He testified Kelly was on the ground when Marlin followed Redenius into the house. Thus, in contrast to Daggett and Varona, the prosecutor s argument did not improperly capitalize on an erroneous evidentiary ruling. Instead, the prosecutor s argument was a fair comment on the evidence. (People v. Lawley, supra, 27 Cal.4th at p. 156.) There was no misconduct. B. Denial of Motion for New Trial Marlin argues the court erred in denying his motion for new trial on the basis of newly discovered evidence his mother, who could not be located during trial, had c[o]me forward to testify and corroborate Marlin s testimony. Penal Code section 1181 sets forth the grounds for granting a new trial. When a verdict has been rendered or a finding made against the defendant, the court may, upon 8 Kelly s declaration submitted with the motion for new trial described the incident somewhat differently: Mr. Redenius pushed me hard, causing me to fall to the ground. [ ] While I was still on the ground I heard the sound of gunshots. [ ] I never saw either Mr. Redenius or [Marlin] with a gun, but I heard the sound of gun shots after Mr. Redenius knocked me to the ground. 9

10 his application, grant a new trial, in the following cases only: [ ]... [ ] (8) When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given.... ( 1181, subd. (8).) The determination of a motion for a new trial rests so completely within the court s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Delgado (1993) 5 Cal.4th 312, 328, quoting People v. Williams (1988) 45 Cal.3d 1268, 1318, partially abrogated in People v. Guiuan (1998) 18 Cal.4th 558, 569.) [I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background. (People v. Delgado, at p. 1318, quoting People v. Dyer (1988) 45 Cal.3d 26, 52.) In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. [Citation.] (People v. Sutton (1887) 73 Cal. 243, ) A defendant who relies upon the ground of newly discovered evidence to sustain his motion for a new trial must have made reasonable effort to produce all his evidence at the trial, and... he will not be allowed a new trial for the purpose of introducing evidence known to him and obtainable at the time of trial.... (People v. Williams (1962) 57 Cal.2d 263, 273 (Williams).) Marlin submitted Kelly s declaration in support of his motion for new trial. It contained a summary of the events of December 13 through December 16. Kelly declared the gun used to shoot Redenius belonged to her. She also declared that on December 16 at Redenius s home, he pushed me hard, causing me to fall to the ground. [ ] While I was still on the ground I heard the sound of gunshots. 10

11 At trial, defense counsel represented to the court he had been unable to locate [Kelly] for trial. The prosecutor also stated she had made extensive efforts to find Kelly throughout the state. Kelly s declaration in support of the motion for new trial contained nothing, however, about why she had not testified at trial or her whereabouts during that time period. 9 There was no other declaration filed with the motion for new trial explaining Kelly s whereabouts during trial or efforts to locate her. The court found it can t be said that the defendant s own mother, who was the other eyewitness to the offense, her lack of presence at the trial could be considered evidence that could not with reasonable diligence have been discovered... [ ]... it appeared to be a decision on her part or some the defendant s part or somebody s, that they d be better off without her presence as the only eyewitness. She was not present for the trial in spite of efforts by the prosecution to find her. And I think you don t get... another bite at it once the trial turns out to be unsuccessful with a strategy of the eyewitness not being present. Without any evidence in the record regarding reasonable effort[s] to produce all his evidence at the trial, we cannot say the trial court abused its discretion in denying the motion for new trial. (Williams, supra, 57 Cal.2d at p. 273.) C. Section 654 Marlin asserts the court erred in not staying his sentence under section 654 for burglary because, he claims, it encompassed the same intent and objective underlying the second degree murder conviction. Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.) Section 654 provides in part: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides 9 Marlin claims Kelly explained her disappearance in a letter to the court. That letter, sent in regard to sentencing, was not signed under penalty of perjury, as was her declaration which notably lacked any explanation for her absence. 11

12 for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. ( 654, subd. (a).) Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. (People v. Cleveland (2001) 87 Cal.App.4th 263, ) The one intent and objective test has been refined in part because of concerns that the test often defeats its own purpose because it does not necessarily ensure that a defendant s punishment will be commensurate with his culpability. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1253.) A finding that multiple offenses were aimed at one intent and objective does not necessarily mean that they constituted one indivisible course of conduct for purposes of section 654. (Ibid.) The court also considers whether the defendant had an opportunity to reflect between offenses and the fact that each successive offense created a new risk of harm. (Id. at p ) People v. Trotter (1992) 7 Cal.App.4th 363 (Trotter), is illustrative. There, the court imposed consecutive sentences for two assaults on the same victim, a police officer in pursuit of the defendant, that occurred about one minute apart. (Id. at p. 366.) The defendant argued each shot manifested the same intent and criminal objective, which was to force [the officer] to break off his pursuit. (Id. at p. 367.) The court disagreed, explaining [d]efendant s conduct became more egregious with each successive shot. Each shot posed a separate and distinct risk to [the officer] and nearby freeway 12

13 drivers.... Furthermore, this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull.... [The] assaults were volitional and calculated, and were separated by periods of time during which reflection was possible.... [D]efendant should... not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his... assaultive behavior. (Id. at p. 368, quoting People v. Harrison (1989) 48 Cal.3d 321, 338.) To find Section 654 applicable to these facts would violate the very purpose for the statute s existence. (Trotter, at p. 368.) Similarly here, Marlin did not commit only one volitional act. (Trotter, supra, 7 Cal.App.4th at p. 368.) As the court found [section] 654 talks about the same act or omission, and these clearly aren t the same acts or omission[s]. There s the shooting, and then there s the going into the house. It s a total different act. I don t think Penal Code Section 654 really applies in this case.... [I]t was a separate act of violence, the entry into the house. The first act the shooting ended before Marlin committed the second act entering Redenius s home with felonious intent. Each offense created a new risk of harm. (People v. Kwok, supra, 63 Cal.App.4th at p ) When Redenius turned and ran after being shot, Marlin had an opportunity to walk away from the victim. (Trotter, at p. 368, citing People v. Harrison, supra, 48 Cal.3d at p. 338.) Thus, each act evinced a separate intent to do violence. (Trotter, at p. 368.) Substantial evidence supports the court s finding section 654 was inapplicable. 13

14 The judgment is affirmed. DISPOSITION Banke, J. We concur: Marchiano, P. J. Dondero, J. 14