P. v. Mackey

Filed 3/9/05 P. v. Mackey CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL MACKEY,
Defendant and Appellant.
B173677
(Los Angeles County
Super. Ct. No. MA025578)
APPEAL from a judgment of the Superior Court of Los Angeles
County, Michael E. Pastor, Judge. Reversed and Remanded in part; Affirmed in
part.
Sally P. Brajevich, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,
Lawrence M. Daniels and Susan Lee Frierson, Deputy Attorneys General, for
Plaintiff and Respondent.

-- 1 of 13 --

2
Appellant Daniel Mackey was convicted by a jury of two counts of
corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)), assault likely to cause
great bodily injury (§ 245, subd. (a)(1)) and false imprisonment with the personal
infliction of great bodily injury (§§ 236, 12022.7, subd. (e)). He was sentenced to
10 years, 8 months in state prison. He appeals, contending that: (1) the court erred
by excluding evidence about the victim’s prior misdemeanors and prior false abuse
claims; (2) that the prosecutor engaged in misconduct during argument; and (3)
that the court gave the jury an incorrect definition of the term “material.” In a
supplemental brief filed with permission of the Court, appellant also contends that
pursuant to Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct 2531], his right
to a jury trial was violated by the court’s imposition of the upper term in count 3
and the imposition of consecutive terms in counts 5 and 6. We affirm the
judgment of conviction but remand the matter for resentencing.
FACTUAL AND PROCEDURAL ARGUMENT
Appellant, his wife Michelle, and their two children lived in
Lancaster. In October 2002, Michelle reported to Los Angeles County Sheriff’s
deputies that appellant was physically abusing her. Michelle told them that in June
2002, appellant had accused her of having an affair and tried to choke her and she
passed out. When she regained consciousness, appellant continued to fight with
her and choked her again. She passed out again, and when she came to, some of
her clothing had been ripped off and her bra was torn. Appellant said he was sorry
and Michelle did not show anyone her black eye and the mark on her neck because
she was ashamed. On Friday, June 28, 2002, appellant picked up a baseball bat
and swung it close to Michelle’s face. He continued to accuse her of having an
affair and demanded to know the name of the man. He then punched her in the
nose and attempted to lock her in the closet. He slammed the door on her hand,

-- 2 of 13 --

3
crushing her finger. He stuffed some socks in her throat and tied a shoestring
around her head to hold the socks in. He cut a ring off her finger with some
needle-nose pliers. He tied her up with neckties and shoelaces. Michelle reported
that appellant then shoved a wooden stick up her rectum.1
Michelle was able to
untie herself and came out, then appellant pushed her back into the closet and
hogtied her. Appellant then held up a gun and put it between her eyes. Then he
backed away and kicked her in the ribs.
Two days later, Michelle told appellant’s brother’s wife, Lily Mackey,
what happened. Lily came to pick her up and took her back to her house. Lily
then took her to see their pastor and Michelle showed them her injuries on her
hands, ribs, and neck. The pastor encouraged Michelle to reconcile with appellant.
Michelle never moved back to her house and stayed with Lily or the pastor. In
September 2002, Michelle filed for divorce. She sought medical treatment for her
ribs which were still hurting her.
In November 2002, deputies went to appellant’s and Michelle’s
house. They collected evidence from the home which included a torn bra, samples
from bloodstains on the wall, and a wooden stick. Tests later confirmed that the
bloodstains on the wall were Michelle’s and that there was fecal matter and sperm
on the stick. Appellant’s DNA, but not Michelle’s, was found on the stick.
Michelle moved in with a couple, Elka and Eland Tell, but moved out
in February 2003, when she had a disagreement with Eland.
Michelle testified at trial that appellant had been abusing her since
1989, and that she had not told police the truth when asked about her injuries. She
admitted that she and appellant had abused alcohol and used methamphetamines.
1
Although appellant was charged with sexual penetration with a foreign object, he
was not convicted on this count.

-- 3 of 13 --

4
At trial, the defense called Dinesh Rajadhayksha, Eland Tell’s next
door neighbor, as a witness. Rajadhayksha testified that he had observed an
argument between Eland and a blond white female in the Tells’ garage. He walked
over to the garage and it sounded like the blond woman was talking on the phone
with the Sheriff’s Department, reporting that she had been assaulted by Eland. She
was agitated and tried to give Eland the phone, inadvertently hitting him with it.
Rajadhayksha tried to calm her down but she became more angry. The sheriff’s
deputies arrived at some point and Michelle moved her things out of the garage,
but Michelle continued to berate Rajadhayksha. Rajadhayksha later identified the
blond woman as Michelle. On re-cross, after listening to the audiotape of the
phone call Michelle made, Rajadhayksha admitted that he had told the person on
the phone that Michelle had hit Eland with the phone, and that Eland had gone to
put his gun away.
Appellant’s and Michelle’s 13-year old son testified that he had never
seen his father swing a bat at his mother. He did testify, however, that right about
the time they moved out of the house, he heard screaming in the middle of the
night and later saw bruises on his mother’s ribs.
Melvin Mackey, appellant’s brother, testified that when Michelle
came to live with him and his wife Lily, she said she was “sore,” but he did not see
any signs of injury. Michelle went out with appellant at least four times while she
was living with Melvin. Other people who saw Michelle at about that time did not
observe any signs of injury on her.
Appellant did not testify at trial.

-- 4 of 13 --

5
DISCUSSION
1. Evidence Code Section 352 Objections
A trial court’s determination of admissibility of evidence pursuant to
Evidence Code section 352 is reviewed for abuse of discretion. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.) Relevant evidence may be excluded if
the trial court determines that its probative value is substantially outweighed by the
probability that its admission will require an undue consumption of time or create a
substantial danger of undue prejudice, confusion of issues or that it will mislead
the jury. (Evid. Code, § 352; People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
a. Michelle’s Prior Misdemeanors
The court refused to allow evidence that Michelle had been convicted
in 1989 of two misdemeanors stemming from an incident in which she left a
restaurant without paying for her food. The court stated: “The court will evaluate
this proffer pursuant to [People v. Wheeler (1992) 4 Cal.4th 284, 295-296] and
Evidence Code section 352. Certainly, the conduct which is alleged may be
characterized as going to moral turpitude. [¶] The court has to evaluate that
conduct in the context of a subsequent misdemeanor conviction which is not, in
fact, admissible. [¶] The court also has to evaluate the time of the alleged
incident, the year 1989, the fact that it is allegedly defrauding a restaurant. [¶] The
court will rule pursuant to Evidence Code 352 that the prejudicial value of such
evidence substantially outweighs its probative value. It has minimal, if any,
probative value in this case, and it opens up significant issues regarding the
underlying conduct, whether it is true or not, whether in fact it can be proven. [¶]
And I am going to sustain the People’s objection under Evidence Code section 352
and preclude defense.” Appellant contends that this was reversible error because
Michelle’s credibility was a central issue.

-- 5 of 13 --

6
The evidence of the misdemeanor convictions, would at most, prove
that Michelle did not pay for a meal fourteen years earlier, something that may not
have surprised the jury based upon the testimony about their lifestyle and the fact
that she and appellant had drug-related problems. It would have little, if any,
bearing on her credibility about the abuse, especially since her stories about the
abuse were supported by physical evidence recovered from the house and by other
witnesses’ testimony about her injuries.
Moreover, evidence was received that Michelle had lied about her
history of drug use on court documents in order to obtain sole custody of her
children. Evidence was also presented that she had threatened appellant that she
would call the police and lie in order to protect her children. She also testified that
she had lied in 1993 to police by telling them she had been assaulted by a stranger
when in fact her injuries had been inflicted by her husband. Therefore, Michelle’s
credibility had already been adequately tested, and any evidence about the 1989
incident would have been cumulative.
The trial court did not err in excluding this evidence. (People v. Snow
(2003) 30 Cal.4th 43, 89; People v. Hillhouse (2002) 27 Cal.4th 469, 495-496.)
b. Prior Uncharged Conduct
Appellant unsuccessfully attempted to introduce evidence that
Michelle and Eland Tell had gotten into an argument and she said to him, “I’m
going to tell the police you hit me.” Tell then called the police, and Michelle
grabbed the phone from him, telling the police that Tell had been verbally abusive.
The prosecutor stated in response to this proffer that if Tell were to testify, he
would then seek to impeach Tell with a tape of the 911 call to demonstrate that it
was Michelle, not Tell, who had called the police. The trial court decided to
exclude the testimony from Tell, stating, “I think under Evidence Code section

-- 6 of 13 --

7
352, this is a subject area which lacks very much probative value. It is an incident
in February of this year involving a completely separate set of circumstances,
completely separate relationship between Ms. Mackey and Mr. Tell to what may
have happened from the year 2000 to the year 2002. It lacks probative value in my
determination. [¶] More importantly, under Evidence Code section 352, the nature
of this type of evidence from Mr. Tell and the time consumption involved, it is of a
collateral nature. The need for impeachment and reimpeachment and going
backwards and forwards, and the real issues involving self-incrimination as to Mr.
Tell substantially outweigh the probative value. [¶] I have balanced and evaluated
the probative versus prejudicial value in this case, offer of proof, and it is my
determination under Evidence Code section 352 not to permit Mr. Tell to testify in
this case.”
On appeal, appellant contends that the exclusion of this evidence was
error since it would show Michelle’s propensity to make false abuse claims when
she was angry at someone. We disagree.
First of all, the prosecutor offered to introduce the tape of the 911 call
which would have disproved Eland Tell’s alleged testimony. There was no
evidentiary value to be gained by Tell’s testifying. Secondly, Rajadhayksha’s
testimony about the incident with Tell was admitted. Tell’s additional testimony
would have been collateral to the main issue of appellant’s guilt and would have
consumed much time and possibly confused the jury. The court did not abuse its
discretion in excluding the evidence. (People v. Lewis (2001) 26 Cal.4th 334, 374-
375.)
3. Prosecutorial Misconduct
The prosecutor stated, at the beginning of argument, “When we
opened this case, I said that you would hear evidence about a long-term

-- 7 of 13 --

8
relationship, but a long-term pattern of abuse punctuated by brutal, vicious acts of
domestic sexual and physical abuse. I said those things in opening. [¶] Having
heard the evidence, this conduct is monstrous. It is horrible.”
The defense made no objection to these statements.
The prosecutor then stated, “It’s horrible what happened in that house.
It’s monstrous. Like I said in the beginning, this is an awful, vicious, brutal thing,
and it’s even worse. It’s compounded by the fact there are kids there listening to
their mother scream. And the little girl said she didn’t know if she was going to
die. [¶] But don’t decide this case on emotion.” At the end of argument, he said,
“Folks, that says it all. This conduct is reprehensible. I’ve never said things like
this in a criminal case, but this conduct is reprehensible. And with those children
there, it is evil and cruel.” At this point, the appellant objected to the remarks as
inappropriate. The court responded: “Any editorial comment, if there is a motion
to strike, the motion is denied. Again, jurors understand that the arguments of
counsel are not evidence in this case. The jurors decide the case based on facts and
upon the legal authority I’m going to be giving to them.”
Appellant claims that the prosecutor’s remarks were inflammatory and
appealed to the jury’s passion and prejudice. We disagree. The evidence in this
case covered the gamut from drug use to extreme physical violence. The
prosecutor’s usage of the terms “reprehensible” and “evil and cruel” to apply to
appellant’s actions was mild compared to the evidence of sodomy with a stick,
hog-tying, and beating. We find no prosecutorial misconduct. (People v. Brown
(2004) 33 Cal.4th 382, 399-400; People v. Welch (1999) 20 Cal.4th 701, 752-753.)
4. Definition of Material
The jury was instructed, inter alia, with CALJIC No. 2.21.2 as
follows: “A witness who is willfully false in one material part of his or her

-- 8 of 13 --

9
testimony is to be distrusted in others. You may reject the whole testimony of a
witness who willfully has testified falsely as to a material point, unless, from all
the evidence, you believe the probability of truth favors his or her testimony in
other particulars.”
During deliberations, the jury sent an inquiry to the court, asking for
the definition of “material” as it was used in that instruction.
After discussing the inquiry with counsel, the prosecutor suggested
that the definition contained in Black’s Law Dictionary would be “appropriate and
probably the safest thing we could do at this point.” Defense counsel replied, “I
agree, partially. [¶] I believe that the definition of ‘material’ in Black’s is
important. But material evidence, I think, should be given to the jury also, though
they didn’t ask for definition of material evidence. It puts the ‘material’ in context,
and it shows how evidence is material evidence. So I would ask they both be
given.” The court replied: “I’m going to limit it to the definition of material,
which I think is an appropriate response to the question in the context of 2.21.2.
[¶] I don’t want to expand the definition beyond that instruction. And I think
taken in context of that instruction, that the definition of ‘material’ goes directly to
the point at issue.”
The court then told the jury: “The definition of ‘material’ in line 1 of
2.21.2, page 6 of jury instructions, is important, more or less necessary, and let me
separate them. [¶] Important; more or less necessary; having influence or effect;
going to the merits; having to do with matter, as distinguished from form.”
Appellant contends that the court should have instead given the
definition used in People v. Wade (1995) 39 Cal.App.4th 1487, 1496, that is,
“‘substantial, essential, relevant or pertinent.’” Appellant argues that had this
definition been given, Michelle’s testimony would have been rejected in its
entirety.

-- 9 of 13 --

10
The relevant passage from Wade reads in its entirety: “[R]ead in the
context of CALJIC No. 2.21.2, it is clear that ‘material’ is not used in the sense
described in [People v. Pierce (1967) 66 Cal.2d 53, 61], i.e., as probably
influencing the outcome. It would make no sense to tell the jury that it could
distrust a false witness only if the falsity influenced the outcome of the case.
Rather, as used in the instruction, ‘material’ carries its ordinary meaning of
‘substantial, essential, relevant or pertinent.’ The instruction thus tells the jury it
can distrust a witness who is willfully false in giving relevant or pertinent
testimony.” (People v. Wade, supra, 39 Cal.App.4th at p. 1496.)
It is apparent that appellant waived his right to object to the definition
of term “material” given since his counsel agreed to that definition at trial. (People
v. Cooper (1991) 53 Cal.3d 771, 846-847; People v. Bohana (2000) 84
Cal.App.4th 360, 373.) The only objection made by defense counsel was to have
an additional definition given, that of “material evidence.”2
But the instruction
dealt with testimony by a witness, not evidence per se.
There is little difference between the definition urged by appellant and
the definition given by the court. “Relevant” or “pertinent” carry the same
meaning as “having influence or effect” or “going to the merits.” “Substantial and
essential” are synonyms of “important.” There was no error in the court’s
instruction.
2
Black’s Law Dictionary (8th ed. 2004) defines “material evidence” under the
definition of “evidence” as “Evidence having some logical connection with the facts of
consequence or the issues.”

-- 10 of 13 --

11
5. Sentencing Issues
The trial court sentenced appellant to the upper term on count 3, four
years, and the upper term on the accompanying great bodily injury enhancement,
of five years. It then sentenced appellant to consecutive terms on count 5
(inflicting corporal injury on a spouse) and on count 6 (false imprisonment). It
imposed the upper term on count 2, but then stayed that term pursuant to Penal
Code section 654.
The imposition of the upper term in count 3 for the assault was based
upon the court’s decision that the offense involved great violence, great danger and
threat of bodily injury, that the victim was vulnerable, and that appellant posed a
serious danger to society. (Cal. Rules of Court, rule 4.421 (a), (a)(2), (a)(3).) The
court noted that appellant had numerous prior convictions but remarked that none
of them were particularly violent, and so considered that as a factor in mitigation.
The court imposed the upper term on the great bodily injury enhancement to count
3 based on the nature and the extent of the injury. The consecutive terms in counts
5 and 6 were based upon the fact that each count had a completely separate intent
and objection, was a completely separate act of violence and committed in a
different time and location. (Cal. Rules of Court, rule 4.425 (a)(1)-(3).)
Appellant contends that pursuant to Blakely v. Washington, supra, 542
U.S. ___ [124 S.Ct. 2531], his right to a jury trial was violated when the court
sentenced him to the upper term on count 3 and consecutive terms in counts 5 and
6.
The People argue that appellant waived his rights by not objecting to
the sentencing at the hearing. Since Blakely was not decided at the time appellant
was sentenced, he obviously did not have a meaningful opportunity to object, and
thus no waiver of rights occurred. (See People v. Welch (1993) 5 Cal.4th 228, 237;
People v. Cleveland (2001) 87 Cal.App.4th 263, 268, fn. 2.)

-- 11 of 13 --

12
We agree that Blakely applies to the California sentencing laws.
(People v. White (2004) 124 Cal.App.4th 1417, pet. for review filed Jan. 19,
2005.)3
The analysis in Blakely was reaffirmed in United States v. Booker (Jan. 12,
2005) 2005 WL 50108, ___U.S. ____[125 S.Ct. 738, 756]. Because the factors on
which the court relied required additional factual findings to be made by the jury,
the imposition of the upper term on count 3 and the accompanying bodily injury
enhancement was invalid. (People v. White, supra, 124 Cal.App.4th at p. 1440.)
The matter must therefore be remanded for resentencing as to this count.
With respect to the imposition of consecutive sentences on counts 5
and 6, Blakely does not apply. The trial court is not required to make factual
findings when deciding to impose consecutive terms. (Cal. Rules of Court, rules
4.425, 4.406, 4.433(c); Pen. Code, § 1170.3; People v. White, supra, 124
Cal.App.4th at p. 1441.) A decision to impose consecutive terms can be made only
after the defendant has been found beyond a reasonable doubt to have committed
two or more offenses. This complies with the guarantee to a jury trial under the
Sixth Amendment and the due process rights afforded by the Fourteenth
Amendment.
3
The California Supreme Court has granted review in two cases involving Blakely,
People v. Towne (S125677) and People v. Black (S126182).

-- 12 of 13 --

13
DISPOSITION
The matter is reversed as to sentencing and remanded for resentencing
on count 3 and its enhancement in accordance with the views expressed in this
opinion; in all other respects the judgment is affirmed.
NOT TO BE PUBLISHED
HASTINGS, J.
We concur:
EPSTEIN, P.J.
CURRY, J.

-- 13 of 13 --