People v. Fuller CA2/6 ( 2021 )

Filed 1/4/21 P. v. Fuller CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for 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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299283
(Super. Ct. No. 2018039735)
Plaintiff and Respondent, (Ventura County)
v.
CHARLIE LOUIS FULLER,
Defendant and Appellant.
Charlie Louis Fuller appeals after a jury convicted him on
four counts: (1) infliction of corporal injury on a cohabitant (Pen.
Code, § 273.5, subd. (a))1, with special allegations that he
inflicted great bodily injury (§ 12022.7, subd. (e)) and personally
used a deadly weapon, a machete (§ 12022, subd. (b)(1)); (2)
assault with a deadly weapon (§ 245, subd. (a)(1)), with a great
bodily injury allegation (§ 12022.7, subd. (e)); (3) battery with
serious bodily injury (§ 243, subd. (d)), with personal use of a
All statutory references are to the Penal Code unless
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otherwise stated.
machete (§ 12022, subd. (b)(1)), and great bodily injury (§ 1192.7,
subds. (c)(8) & (32)); and (4) misdemeanor battery (§ 243, subd.
(e)(1)). The jury found true the allegation that Fuller was
previously convicted of voluntary manslaughter (§ 192, subd. (a))
within the meaning of section 667, subdivisions (a)(1) and (c). In
a separate proceeding, the jury found his prior conviction
allegation to be true. The trial court denied appellant’s request
for a mental health diversion under section 1001.36.
Appellant received 13 years in state prison. On count 1,
the court imposed the low term of two years, doubled to four
years, plus a consecutive three-year term for the great bodily
injury enhancement, and a one-year deadly weapon
enhancement, for a total of eight years as the principal term. The
court imposed a consecutive five-year term for the prior
conviction to bring count 1’s aggregate term to 13 years. It
imposed and stayed counts 2 and 3. On count 4 the court
sentenced appellant to 120 days in custody, to be served
concurrently with the felony sentence.
The trial court also imposed: (1) a $1,050 restitution fine
(§ 1202.4, subd. (b)); (2) a $1,050 parole revocation fine, stayed
pending completion of parole (§ 1202.45); (3) a $160 court
operations assessment (§1465.8); and (4) a $120 conviction
assessment (Gov. Code, § 70373). It granted defense counsel’s
request to strike the restitution fine pursuant to People v. Dueñas
(2019) 30 Cal.App.5th 1157. This appeal followed.
We conditionally reverse the judgment and remand with
instructions to: (1) hear appellant’s request for a mental health
diversion under section 1001.36; and (2) correct the abstract of
judgment as indicated if the trial court decides to reinstate his
convictions.
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STATEMENT OF FACTS
Appellant briefly dated victim L.D. in 2018. She continued
to drive his white Ford Explorer after their relationship ended.
Appellant noticed accident damage when she returned the vehicle
following one use. He later received a hit-and-run citation
revealing L.D. had backed into another car at a gas station and
fled the scene. Appellant demanded L.D. pay for the damage but
she refused.
Appellant’s anger over the incident escalated into physical
violence. Armed with a knife appellant tried to enter L.D.’s van
in May of 2018; he was repelled by pepper spray shot by L.D.’s
new boyfriend, R.G. Appellant and R.G. came to blows in a
discount store parking lot the next month when appellant
insisted on speaking with L.D. He confronted her again outside a
Vons on September 10 and grabbed her repeatedly by the arm,
shirt, and hair to restrain her from leaving. She later reported to
police that he was following her in his car. She requested a
restraining order against appellant following the September 10
incidents.
The violence continued on September 23, 2018 in the
parking lot of Ventura’s Mission Park. L.D. saw a friend and
offered to get him a soda from a cooler in her van. She walked to
the van, opened the door, and crawled inside toward the cooler.
When she turned around, appellant stood at the door with a
machete. She grabbed for a nearby golf club and tried to deflect
appellant’s blows as he began swinging the blade at her.
Appellant fled when another friend of L.D.’s noticed the van
shaking back and forth and rushed to help her.
The attack left L.D. with approximately seven cuts on her
legs. The largest measured between six and eight centimeters
and went deep enough to expose subcutaneous fat. She went to a
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hospital where doctors closed the wound with 17 sutures.
Officers at Mission Park interviewed the two friends who
witnessed the attack. L.D. asked a police officer at the hospital to
obtain another restraining order against appellant, which he did.
DISCUSSION
1. The Trial Court Properly Admitted Evidence of Appellant’s
Prior Acts of Violence Against the Victim
The prosecution introduced evidence of the uncharged
“pepper spray” incident and appellant’s fight with R.G. outside
the discount store to show both motive for, and a plan to commit,
the September 23 machete attack. Appellant contends the trial
court abused its discretion by admitting evidence of the prior acts
because the jury may have based its guilty verdict on these acts
rather than the charged crimes. We disagree.
Evidence Code section 1101 prohibits the court from
admitting evidence of a defendant’s prior uncharged misconduct
to show he committed the current offense. The court may allow
such evidence to show, however, the defendant’s plan or state of
mind, such as motive, knowledge, or intent. (§ 1101, subds. (a),
(b).) Evidence admissible to prove intent need only support the
inference that defendant probably possessed the same intent in
each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 401-402,
superseded by statute on other grounds as stated in People v.
Britt (2002) 104 Cal.App.4th 500, 505; People v. Hendrix (2013)
214 Cal.App.4th 216, 238.) A greater degree of similarity must
exist when prosecutors seek to prove a common design or plan.
(Ewoldt at p. 402.)
The prior acts introduced below were similar enough to the
charged offense to satisfy the admissibility requirements for both
intent and common plan under section 1001. Both attacks
occurred in a relatively short period before the September 23
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attack. Both involved appellant angrily attempting to confront
the same victim and provoking forceful intervention by R.G. He
used a similar weapon during the pepper spray incident, a
kitchen knife, and likewise tried to trap L.D. in her van so he
could more easily stab or hack at her.
The probative value of the two prior incidents substantially
outweighed any prejudice that may have resulted from their
admission. (Evid. Code, § 352.) They showed appellant targeted
L.D., and more importantly, placed appellant’s bizarre and
seemingly spontaneous attack into the proper context, i.e., a
volatile relationship in which appellant did not hesitate to
violently retaliate against L.D. for her wrongdoings. It also
helped explain why she carried the golf club used to deflect
appellant’s blows on September 23.
Lastly, the jury received an instruction to consider the
evidence solely for the purpose of determining whether appellant
committed the charged crimes and had a common plan or scheme
to do so. We presume the jury followed the court’s instruction.
(People v. Turner (1994) 8 Cal.4th 137, 190.)
The trial court did not err.
2. The Trial Court Properly Denied Appellant’s Motion to Strike
His Prior Conviction for Voluntary Manslaughter
In 1998, appellant walked into the home of an
acquaintance, accused him of spreading lies, then punched him
the face. Appellant stabbed the man in the chest with a kitchen
knife four to five times in the scuffle that followed. The man
died. Appellant later pleaded guilty to voluntary manslaughter
and served 12 years in prison. At trial, defense counsel moved to
strike this conviction in the interests of justice pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497. Appellant
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argues the court abused its discretion when it denied that
motion.
We review Romero rulings for abuse of discretion. (People
v. Carmony (2004) 33 Cal.4th 367, 376.) Two precepts guide us.
“First, ‘“[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.”’ [Citations.]
Second, a ‘“decision will not be reversed merely because
reasonable people might disagree. . . .”’ [Citations.] Taken
together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary
that no reasonable person could agree with it.” (Id. at pp. 376-
377.)
We consider the age of appellant’s prior conviction the only
factor favoring his Romero motion. The 19 years separating
these crimes does not, however, erase their similarity. In both,
appellant ended personal quarrels by angrily confronting his
victims and attacking them with blades. Only the presence of a
golf club and a vigilant bystander saved L.D. from the prior
victim’s fate. We conclude the trial court did not act irrationally
or arbitrarily when it denied the motion. The similarity of the
prior acts was well grounded in the evidence.
3. The Trial Court Must Conduct a Mental Health
Diversion Hearing
Defense counsel told the court shortly before verdict that he
intended to request a mental health diversion at sentencing if
appellant were convicted. The court responded “Okay. Well, let’s
see where we go from here. All right.” At sentencing, defense
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counsel formally requested the diversion and cited the probation
report’s passages about appellant’s schizophrenia diagnosis, his
current symptoms, and his regimen of psychotropic medication.
The People claimed appellant forfeited the issue by failing to
plead guilty by reason of insanity or by raising it before the court
impaneled the jury. The trial court agreed “the horse [was] out of
the barn” because the trial had concluded and resulted in
appellant’s conviction on all four counts. It denied the request.
Appellant’s horse had not in fact left the barn. A court may
postpone prosecution “at any point in the judicial process from
the point at which the accused is charged until adjudication” so a
defendant can “undergo mental health treatment.” (§ 1001.36,
subd. (c).) The People now agree defense counsel timely
requested diversion. We conditionally reverse judgment and
remand for a diversion hearing pursuant to section 1001.36.
4. The Trial Court Must Correct the Abstract of Judgment If It
Denies Appellant’s Request for a Mental Health Diversion on
Remand
The abstract of judgment assesses three fines against
appellant: (1) a parole revocation fee, stayed pending completion
of parole; (2) a court operations fee; and (3) a criminal conviction
fee. Appellant and the People agree these fines should not be
assessed under People v. Dueñas, supra, 30 Cal.App.5th 1157.
The trial court should strike all three from the abstract.
The abstract also reflects a deadly weapons enhancement
on Count 2. The information did not charge this enhancement.
Appellant and the People likewise agree the court should amend
the abstract to delete it.
DISPOSITION
The judgment is conditionally reversed. The cause is
remanded to the trial court with directions to conduct a diversion
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eligibility hearing pursuant to section 1001.36. If the trial court
determines appellant qualifies for diversion, it may grant
diversion. We express no opinion on that determination.
If the trial court grants diversion and appellant
successfully completes diversion, then the trial court shall
dismiss the charges. If it does not grant diversion, or appellant
does not successfully complete diversion, then his convictions
shall be reinstated.
If appellant’s convictions are reinstated, the trial court
shall resentence defendant, considering whether to exercise its
discretion pursuant to sections 667, subdivision (a) and 1385,
subdivision (b). Again, we express no opinion with respect to that
decision.
Lastly, if appellant’s convictions are reinstated, the trial
court shall correct the abstract of judgment by: (1) striking the
parole revocation fee, court operations fee, and criminal
conviction fee pursuant to People v. Dueñas; and (2) deleting the
weapons enhancement from Count 2.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
TANGEMAN, J.
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Rocky J. Baio, Judge
Superior Court County of Ventura
______________________________
Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Analee J. Brodie, Deputy Attorney
General, for Plaintiff and Respondent.
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