Filed 4/5/22 P. v. Sioteco 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury convicted appellant Jonathan Sioteco of elder abuse (Pen. Code, § 368, subd. (b)(1)[1]) and found true allegations he inflicted great bodily injury on the victim (§ 12022.7, subd. (c)), and personally used a deadly weapon (§ 12022, subd. (b)(1)). It also convicted him of misdemeanor assault (§ 240) and resisting, obstructing, or delaying a police officer (§ 148, subd. (a)(1)). The trial court suspended imposition of sentence and released appellant on three years of felony probation including a condition he enroll in a treatment program. It later found he violated the terms of probation and sentenced him to seven years in prison: the lower term of two years on the elder abuse charge, plus five years on the great bodily injury enhancement. The court imposed a 45-day concurrent sentence on both the assault and resisting arrest charges but considered them served based on appellant’s custody credits. We granted appellant’s unopposed motion to consolidate the appeal of his conviction with his later appeal of the trial court’s revocation of probation and sentencing him to prison.[2]

Appellant challenges his conviction on the grounds the trial court failed to suspend trial proceedings sua sponte and order a competence hearing, and for declining to instruct the jury on self-defense. He contends the court lacked sufficient evidence to find he violated the terms of probation and abused its discretion by sentencing him to prison. Appellant also requests we remand his case for resentencing under amended Penal Code section 654, which vests trial courts with greater discretion when sentencing defendants convicted of multiple crimes arising from the same course of conduct.

We affirm the convictions but vacate appellant’s sentence and remand for resentencing under amended section 654.

FACTUAL AND PROCEDURAL BACKGROUND

Robert Mionske and his wife Robin[3] live on a rural, eight-acre parcel in Ventura County’s Santa Susana mountains. They woke the morning of November 8, 2019 to reports of several small fires in the area. The couple drove about a mile down a dirt access road to a park ranger station to get more information. The ranger and responding firefighters told them the fires were extinguished but they were looking for a suspected arsonist. The couple saw appellant walking along the access road while driving home. It was unusual for them to see pedestrians in such a remote area. They immediately returned to the ranger station to report seeing a potential suspect heading in the direction of their property.

Upon returning home the Mionskes found appellant trying to enter their house through the front door, then the side door. He appeared agitated and dirty. Robert attempted to calm him by giving him a drink from their water spigot and offering a pomegranate from a nearby tree. Appellant looked toward a house in the distance and asked whether “they have any guns.” A bewildered Robert responded that he did not know. Appellant then began walking toward a shed in which the Mionskes stored tools and yard equipment. Robert followed at a short distance. His wife remained near their car and began text messaging the park ranger.

Appellant entered the shed and emerged with a chainsaw. He made sawing noises, then returned to the shed and began rifling through its contents. Robert stepped inside so he could monitor him while waiting for the ranger to arrive. Appellant suddenly knocked Robert to the ground and grabbed a double-bladed axe. The two briefly struggled over the axe, which at some point sliced through Robert’s boot. Appellant then picked up an aluminum baseball bat and began beating Robert over his entire body. The beating stopped when Robert managed to kick him in the groin with both feet. Appellant then shut the shed’s door and left. Sheriff’s deputies arrested him on a neighbor’s property later that morning.

The beating left Robert with a badly fractured right forearm and defensive wounds to his hands. A large cut on the back of his head required staples to close. He required surgery to repair his radius and ulna followed by several months of physical therapy to restore function to his hand. At the time of trial, Robert continued to wear a pressure glove to reduce discomfort and could no longer perform physical tasks like operating his sailboat, repairing tractors and equipment, and performing brush abatement on his land.

At sentencing, appellant’s counsel presented the court with a long list of mitigating factors. Appellant lacked any prior criminal record, had strong family support, and served commendably as an Air Force intelligence specialist in Afghanistan. He had grappled with PTSD and psychosis following his honorable discharge from the military several years prior. The trial court commended appellant’s service and recognized his mental health issues were likely to blame for the attack. It suspended imposition of sentence and released appellant on felony probation so he could enter a residential treatment program selected by counsel and probation. Shortly after, a representative from the New Directions for Veterans (NDVets) program in Los Angeles picked him up from Ventura County Jail and drove him to NDVets’ facility at the West Los Angeles VA Medical Center (VA).

A week later appellant left NDVets without permission to obtain a COVID-19 test at the nearby VA hospital. He tested positive and was transported to a quarantine facility in the Skid Row area of Los Angeles. Appellant boarded a bus back to the VA campus after “a couple [of] days” but did not return to NDVets or notify them. Instead, he enrolled in another VA program called “The Domiciliary” that he believed would more effectively treat his PTSD. The court issued a felony bench warrant after probation contacted NDVets and discovered appellant was missing.

Police located appellant near UCLA more than six weeks after he left NDVets. They arrested him without incident after running his identification and discovering the bench warrant. Appellant acknowledged leaving The Domiciliary “for a few days” to visit a female friend but intended to return to the program early the next morning. The trial court found he willfully violated the terms of probation. It revoked probation and sentenced him to the lower term of two years prison on the elder abuse conviction, plus five years consecutively on the great bodily injury enhancement. He appeals.

DISCUSSION

A. Appellant’s Competence to Stand Trial

Appellant argues the trial court violated his due process rights by not ordering a competency hearing sua sponte when presented with evidence he suffered from PTSD and psychosis when the case first commenced. (Pate v. Robinson (1966) 383 U.S. 375, 377 [15 L.Ed.2d 815]; § 1368, subd. (b).) It is not disputed that appellant had mental health issues. Defense counsel stated at preliminary hearing that his client intended to amend his “not guilty” plea to a dual plea of “not guilty and not guilty by reason of insanity” under Penal Code section 25.[4] Witnesses who testified at the hearing described appellant as speaking nonsensically on the day of the attack. He told the ranger and sheriff deputies, for example, he was in the area for an appointment with comedian Dave Chappelle. More evidence about his troubled mental state came out at trial. Robert Mionske testified he immediately suspected “that there was some kind of problem with him, his mind, or drugs or alcohol.” Robin Mionske described him as mumbling incoherently and ignoring the couple when they approached like they were “invisible.” Probation listed mental illness as a mitigating factor at sentencing. At his violation of probation violation hearing, appellant told the court he had received counseling for his PTSD through the VA two years prior to the attack.

This appeal concerns appellant’s competence to stand trial, not his mental state leading up to the crimes. Evidence he suffered psychotic episodes and sought counseling in the past does not show he was “unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).) The record indicates he was capable of both. Appellant expressly requested the court replace his private counsel with a public defender at the conclusion of his preliminary hearing and rationally conversed with the court about scheduling his next appearance. He answered affirmatively when asked whether he understood his right not to testify. Defense counsel never broached the topic of appellant’s competence to proceed. (See People v. Rogers (2006) 39 Cal.4th 826, 848 [“[T]rial counsel’s failure to seek a competency hearing . . . is significant because trial counsel interacts with the defendant on a daily basis and is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings [citation]”].)

At sentencing, appellant stated “You won’t be disappointed, your Honor” when the court ordered him to residential treatment instead of prison. When he returned to court on charges of violating probation, he admitted leaving NDVets because he preferred The Domiciliary’s treatment program and quarantine policy. Appellant responded appropriately to questions posed to him by defense counsel about his background and post-conviction conduct. On cross-examination, he engaged with the District Attorney about whether he actually “left” The Domiciliary by visiting a friend off campus for a few days, reasoning he was still in the program because his belongings remained onsite and he intended to resume treatment. Appellant’s statements at his Marsden hearing[5] likewise confirm he appreciated the gravity of the trial proceedings and deliberately, if imprudently, declined to heed counsel’s advice on key matters or to mind the modest restrictions placed on him at sentencing in lieu of prison. At no point was the court presented with evidence appellant operated under a “delusional system” that prevented him from assisting in his defense. (See People v. Melissakis (1976) 56 Cal.App.3d 52 [defendant’s taking stand mid-trial to describe conspiracy theory to jury in rambling narrative required court to suspend proceedings and revisit pre-trial finding of competence].)

The trial court’s decision whether to hold a competency hearing is entitled to great deference because it had the opportunity to observe the defendant during trial. (People v. Mai (2013) 57 Cal.4th 986, 1033.) We conclude from the record it was not “presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial.” (People v. Rogers, supra, 39 Cal.4th at p. 847.)

B. Self-Defense Jury Instruction

Appellant contends the trial court erred when it refused to instruct the jury on the theory of self-defense as applied to the elder abuse and assault counts. He characterizes testimony that Robert followed and confronted a visibly agitated stranger as suggesting the attack culminated from appellant’s belief he was being threatened. We disagree. Robert spoke softly to appellant, engaged him with charitable gestures, and remained several paces behind him as they walked to a shed on the Mionskes’ property. Appellant complied with a request that he put down a chainsaw. Robert entered the shed to monitor the situation until police arrived but did not use force to confine appellant within the shed. The record does not support appellant’s contention that Robert’s behaviors were “threatening.” (See People v. Minifie (1996) 13 Cal.4th 1055, 1064, quoting People v. Goins (1991) 228 Cal.App.3d 511, 516 [“To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]”].)

Appellant elected not to enter a dual plea or to proffer evidence about why he perceived Robert’s actions or words as justifying the beating. We are left to review only the accounts of Robert and Robin Mionske of these events. In doing so, we find no evidence warranting instructions on self-defense, whether as a stand-alone instruction or as an element of the assault instruction referring to the theory.[6] (See People v. Barnett (1998) 17 Cal.4th 1044, 1152 [the court need not instruct the jury “on a defense supported by ‘minimal and insubstantial’ evidence”].)

C. Probation Violation

Appellant contends the trial court lacked substantial evidence to find he willfully violated the terms of probation. (See People v. Cervantes (2009) 175 Cal.App.4th 291, 295, quoting People v. Galvan (2007) 155 Cal.App.4th 978, 982 [“A court may not revoke probation unless the evidence supports ‘a conclusion [that] the probationer’s conduct constituted a willful violation of the terms and conditions of probation’”].) At hearing, he described the six weeks after his release as a cascade of miscommunications, pandemic-related medical crises, and well-intentioned attempts to seek better treatment for his PTSD. Certain aspects of his account, however, contradict this innocent narrative. He placed rolled up blankets in his bed at NDVets to prevent staff from detecting he had not returned from a smoke break, and, later, did not report back after returning from the Skid Row quarantine. He admitted he “didn’t handle it right” and decided to leave because he did not like the NDVets’ program. But appellant assigned most blame to others: NDVets’ staff, for example for not giving his probation officer’s contact information to the new program. He then left The Domiciliary without notice to visit a friend because he felt quarantine was “stressful,” reasoning it was fine to leave for a few days because he would eventually return.

“‘“[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .”’ [Citation.] And the burden of demonstrating an abuse of the trial court’s discretion rests squarely on the defendant.” (People v. Urke (2011) 197 Cal.App.4th 766, 773.) This is not an “extreme” case. The frequency with which appellant, in his own words, “took matters in [his] own hands” revealed his tendency to flout any modest restriction of his behavior whenever he grew dissatisfied with his environment.

The trial court was vested with broad discretion to determine whether to reinstate probation following revocation. (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.) It exercised this discretion properly here. Appellant’s poor performance on probation was an aggravating factor (Cal. Rules of Court, rule 4.414(b)(2)); a single aggravating factor is sufficient to justify the denial of probation (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1158). Moreover, the court is presumed to have considered all the relevant criteria relating to the denial of probation. (Cal. Rules of Court, rule 4.409.)

D. Re-Sentencing Under Amended Penal Code Section 654

Appellant requests resentencing under Assembly Bill 518 (AB 518), which went into effect while his appeal was pending.[7] He also contends the trial court should have stayed execution of his 45-day assault sentence because it is a lesser included offense of his elder abuse conviction. We agree on both points.

“The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The former version of section 654 gave trial courts little discretion when sentencing a defendant convicted of multiple crimes arising from the same course of conduct; they were simply required to impose the sentence carrying the “longest potential term of imprisonment.”[8] AB 518 amended this requirement by restoring courts’ authority to sentence defendants under any statute applicable to the convictions.[9] (See Off. of Sen. Floor Analyses, 3d reading analysis of AB 518 (2021-2022 Reg. Sess.), p. 1 [“Mandating the harshest sentence in every case robs the judiciary of an important decision which it is in the best position to make — the court has heard and considered the facts and circumstances of the case and should have discretion to formulate an appropriate sentence.”].)

Appellant’s attack on Robert Mionske formed the basis of two of four charges filed against him: elder abuse (count 1) and assault with a deadly weapon (count 2). The jury convicted him of elder abuse but acquitted him of assault with a deadly weapon, convicting him instead of simple assault. The trial court sentenced appellant to a low term of two years on the elder abuse conviction plus five years consecutively for causing great bodily injury. It imposed a 45-day jail sentence for the assault conviction to be served concurrently with the seven-year sentence for elder abuse. It deemed the latter sentence served based on time spent in custody.[10]

The People concede AB 518 applies retroactively because appellant’s conviction was not final when the law took effect. (See, e.g., People v. Almanza (2018) 24 Cal.App.5th 1104, 1109 (Almanza); People v. Chavez (2018) 22 Cal.App.5th 663, 712.) Nevertheless, it argues resentencing would be an idle act because the trial court imposed the lower term on the elder abuse conviction (two years).[11] This conflates section 654 with the court’s discretion to impose a lower, middle, or upper term for a specified crime under California’s felony sentencing guidelines. Rather, section 654 governs which criminal statute should serve as the basis of a sentence when, as here, a defendant violated two or more statutes during the same course of conduct. The version of the statute in effect at appellant’s sentencing required the court to punish him under the statute providing for the longest term of imprisonment. This clearly was the elder abuse conviction, a felony which not only carried a longer term than simple assault[12] but also a five-year enhancement based on the jury’s finding appellant caused Mr. Mionske great bodily injury. Amended section 654 will give the trial court discretion to sentence appellant under either of these statutes.

As we stated in Almanza, “[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so.” (Almanza, supra, 24 Cal.App.5th at p. 1110.) It is difficult to discern from the record whether the court would have exercised its discretion differently under amended section 654. The court’s finding that appellant violated probation and remained a risk to public safety suggests not, but further speculation on this point is not appropriate. Instead, we remand for resentencing under the amended statute.

E. Assault as Lesser Included Offense of Elder Abuse

The People also concede the assault conviction is a lesser included offense of the elder abuse conviction, and as such, the trial court should have stayed execution of the 45-day assault sentence under section 654 rather than order appellant to serve it concurrently. (See People v. Duff (2010) 50 Cal.4th 787, 796 [“[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence”].) We agree this violated the multiple punishment provision under the prior and current versions of the statute. The point is a technical one considering our decision to vacate appellant’s sentence for the above-stated reasons.[13]

DISPOSITION

Appellant’s sentence is vacated and the matter remanded to the trial court for resentencing under amended Penal Code section 654. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.

Ryan J. Wright, Judge

Superior Court County of Ventura

______________________________

Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and David S. Glassman, Deputy Attorney General for Plaintiff and Respondent.

[1] We cite the Penal Code unless noted otherwise.

[2] See Order dated July 19, 2021.

[3] We use first names for ease of reference. No disrespect is intended.

[4] Ultimately, appellant proceeded to trial without amending his guilty plea.

[5] Defendants seeking to replace appointed counsel must seek and obtain the court’s permission to do so at a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118.

[6] The record does not specify the stand-alone self-defense instruction sought by counsel below. The instruction language discussed by counsel and the trial court make CALCRIM 3470 the likeliest. The court properly removed element 5 from the assault instruction, i.e., CALCRIM 875.

[7] AB 518 went into effect as of January 1, 2022.

[8] The former version of Section 654, subdivision (a) stated: “An act or omission that is punishable in different ways by different provisions of a law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

[9] Section 654, subdivision (a) now states: “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (Italics added.)

[10] The abstract of judgment reflects 472 days of pre-conviction custody credit.

[11] Elder abuse carries a low term of two years, middle term of three years, and upper term of four years. (§ 368, subd. (b)(1).)

[12] As a misdemeanor, simple assault is punishable “by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both.” (§ 19.)

[13] In addition, the court deemed the assault sentence served based on appellant’s pre-custody credits.