People v. Maciel CA4/2
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Opinion
Filed 8/9/21 P. v. Maciel CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073347
v. (Super.Ct.No. INF1700472)
ERICK ALEXANDER MACIEL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,
Judge. Affirmed as modified with directions.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley
Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
A jury convicted defendant and appellant Erick Alexander Maciel of committing
several violent offenses against his former girlfriend, Jane Doe, and Jane’s friend, Mary
Doe. The evidence showed that Maciel attacked Jane and Mary with screwdrivers while
Jane and Mary were moving Jane’s belongings out of Maciel’s home. As a result of the
attacks, Jane and Mary each suffered significant physical injuries, including permanent
injuries. At the time of the crimes, Maciel had no criminal history, was 31 years old, and
worked as a registered nurse.
The jury found Maciel guilty in two counts of attempted voluntary manslaughter
(Pen. Code, §§ 664, subd. (a),1 192, subd. (a), count 1 [Jane], count 2 [Mary]), as lesser
offenses to charges of premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)).
The jury found Maciel guilty as charged of torture against Jane (§ 206, count 3);
aggravated mayhem against Jane (§ 205, count 4); mayhem against Mary (§ 203, count
5); felony domestic violence against Jane (§ 273.5, subd. (a); count 6); and, finally,
assaulting Mary with a deadly weapon (§ 245, subd. (a), count 7). The jury further found
that Maciel personally used a deadly weapon, a screwdriver, in counts 1, 2, and 6 (§
12022, subd. (b)(1)) and personally inflicted great bodily injury in counts 1, 2, 6, and 7
(§ 12202.7, subds. (a) [counts 1, 2, & 7], (e) [count 6]). Maciel was sentenced to
consecutive terms totaling 18 years four months in prison on counts 1, 2, 5, 6, and 7, plus
two life terms, to run concurrently to each other, on counts 3 and 4.
1 Undesignated statutory references are to the Penal Code.
2 Maciel raises four clams of error. He first claims the court applied incorrect legal
standards and abused its discretion in denying his pretrial motion for mental health
diversion—that is, to suspend the criminal proceedings pending his completion of a
mental health treatment program. (§ 1001.36.) He seeks the conditional reversal of the
judgment and remand for a second mental health diversion hearing. We decline to grant
this relief because we conclude that the court applied the correct legal standards and did
not abuse its discretion in denying Maciel’s pretrial motion for mental health diversion.
Maciel next raises two claims of sentencing error. For reasons we explain, we
reject Maciel’s claim that his sentences on one or more of the counts involving each
victim (Jane [counts, 1, 3, 4, & 6]; Mary [counts 2, 5, & 7]) were required to be stayed.
(§ 654.) Maciel further claims, and the People and we agree, that the court erroneously
imposed a “full” consecutive three-year term on Maciel’s attempted voluntary
manslaughter in count 2. This full consecutive term was unauthorized under
section 1170.16, which applies to the completed crime of voluntary manslaughter but not
to attempted voluntary manslaughter. Thus, we strike the three-year base term on
count 2, and we remand the matter for resentencing so the court can exercise its
sentencing discretion anew, to the extent it is authorized to do so,2 in light of this change
to the judgment. (People v. Buycks (2018) 5 Cal.5th 857, 893.)
2 The court imposed one-half of the middle term, rather than one-half of the upper term, on count 1, the principal count. (§§ 193, subd. (a), 664, subd. (a).)
3 Fourth, and finally, Maciel claims, and the People and we agree, that the abstract
of judgment (indeterminate) and the sentencing minute order must be corrected to reflect
that the court imposed, but immediately struck, a $10,000 restitution fine; $210 in
criminal conviction fees; and $280 in court operations assessments, based on its finding
that Maciel lacked the ability to pay them. (People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas).
In sum, we strike the three-year base term on count 2 as unauthorized. We remand
the matter for resentencing and with directions to prepare a supplemental sentencing
minute order and a corrected abstract of judgment, both showing that the court previously
struck the restitution fine, criminal conviction fees, and court operations assessments. In
all other respects, we affirm the judgment.
II. FACTUAL BACKGROUND/TRIAL EVIDENCE3
A. Prosecution Evidence
1. Events Preceding the March 4, 2017 Offenses
In March 2017, Maciel and Jane were in a dating relationship and had been living
in Maciel’s house for around three weeks. Jane decided to break up with Maciel and
move out of his house because they had been arguing about Jane’s three-year-old son
who lived with them three days each week. Jane was “terrified” that Maciel was going to
hurt her son because Maciel had recently threatened to throw the boy out of the boy’s bed
3 Although not relevant to Maciel’s claim that the court erroneously denied his pretrial motion for mental health diversion (§ 1001.36), the evidence presented at trial is relevant to Maciel’s claims of section 654 sentencing error, as we demonstrate post.
4 and onto the floor. Maciel also told Jane that he wanted her to spend less time with her
son, to give up some of her custody time, and to stop seeing her friend, B.S. He told Jane
that he did not “come second to anybody.” Jane felt very unsafe and told B.S. that she
“had to get out” of Maciel’s house.
Jane did not initially tell Maciel that she was breaking up with him and moving
out. During the evening of March 3, 2017, while Maciel was working the 7:00 p.m. to
7:00 a.m. shift as a nurse at a hospital, Jane began packing her things at Maciel’s house.
B.S. had advised Jane to pack when Maciel was not at home because B.S. could “sense”
that Jane was concerned for her safety. B.S. was planning to help Jane move her things
to B.S.’s home.4
While at work during the evening of March 3, 2017, Maciel sent numerous texts
and other communications to Jane, asking what she was doing, complaining that she was
not responding to his messages and complaining that she had not asked him how his night
was going, and directing her to unfriend one of his friends on social media, among other
things. At one point, Jane texted Maciel that she had been busy cleaning the house.
Around 9:00 p.m., before she left the house with B.S., Jane left a note for Maciel at his
house, together with a ring he had given her.
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Filed 8/9/21 P. v. Maciel CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073347
v. (Super.Ct.No. INF1700472)
ERICK ALEXANDER MACIEL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson,
Judge. Affirmed as modified with directions.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley
Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
A jury convicted defendant and appellant Erick Alexander Maciel of committing
several violent offenses against his former girlfriend, Jane Doe, and Jane’s friend, Mary
Doe. The evidence showed that Maciel attacked Jane and Mary with screwdrivers while
Jane and Mary were moving Jane’s belongings out of Maciel’s home. As a result of the
attacks, Jane and Mary each suffered significant physical injuries, including permanent
injuries. At the time of the crimes, Maciel had no criminal history, was 31 years old, and
worked as a registered nurse.
The jury found Maciel guilty in two counts of attempted voluntary manslaughter
(Pen. Code, §§ 664, subd. (a),1 192, subd. (a), count 1 [Jane], count 2 [Mary]), as lesser
offenses to charges of premeditated attempted murder (§§ 664, subd. (a), 187, subd. (a)).
The jury found Maciel guilty as charged of torture against Jane (§ 206, count 3);
aggravated mayhem against Jane (§ 205, count 4); mayhem against Mary (§ 203, count
5); felony domestic violence against Jane (§ 273.5, subd. (a); count 6); and, finally,
assaulting Mary with a deadly weapon (§ 245, subd. (a), count 7). The jury further found
that Maciel personally used a deadly weapon, a screwdriver, in counts 1, 2, and 6 (§
12022, subd. (b)(1)) and personally inflicted great bodily injury in counts 1, 2, 6, and 7
(§ 12202.7, subds. (a) [counts 1, 2, & 7], (e) [count 6]). Maciel was sentenced to
consecutive terms totaling 18 years four months in prison on counts 1, 2, 5, 6, and 7, plus
two life terms, to run concurrently to each other, on counts 3 and 4.
1 Undesignated statutory references are to the Penal Code.
2 Maciel raises four clams of error. He first claims the court applied incorrect legal
standards and abused its discretion in denying his pretrial motion for mental health
diversion—that is, to suspend the criminal proceedings pending his completion of a
mental health treatment program. (§ 1001.36.) He seeks the conditional reversal of the
judgment and remand for a second mental health diversion hearing. We decline to grant
this relief because we conclude that the court applied the correct legal standards and did
not abuse its discretion in denying Maciel’s pretrial motion for mental health diversion.
Maciel next raises two claims of sentencing error. For reasons we explain, we
reject Maciel’s claim that his sentences on one or more of the counts involving each
victim (Jane [counts, 1, 3, 4, & 6]; Mary [counts 2, 5, & 7]) were required to be stayed.
(§ 654.) Maciel further claims, and the People and we agree, that the court erroneously
imposed a “full” consecutive three-year term on Maciel’s attempted voluntary
manslaughter in count 2. This full consecutive term was unauthorized under
section 1170.16, which applies to the completed crime of voluntary manslaughter but not
to attempted voluntary manslaughter. Thus, we strike the three-year base term on
count 2, and we remand the matter for resentencing so the court can exercise its
sentencing discretion anew, to the extent it is authorized to do so,2 in light of this change
to the judgment. (People v. Buycks (2018) 5 Cal.5th 857, 893.)
2 The court imposed one-half of the middle term, rather than one-half of the upper term, on count 1, the principal count. (§§ 193, subd. (a), 664, subd. (a).)
3 Fourth, and finally, Maciel claims, and the People and we agree, that the abstract
of judgment (indeterminate) and the sentencing minute order must be corrected to reflect
that the court imposed, but immediately struck, a $10,000 restitution fine; $210 in
criminal conviction fees; and $280 in court operations assessments, based on its finding
that Maciel lacked the ability to pay them. (People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas).
In sum, we strike the three-year base term on count 2 as unauthorized. We remand
the matter for resentencing and with directions to prepare a supplemental sentencing
minute order and a corrected abstract of judgment, both showing that the court previously
struck the restitution fine, criminal conviction fees, and court operations assessments. In
all other respects, we affirm the judgment.
II. FACTUAL BACKGROUND/TRIAL EVIDENCE3
A. Prosecution Evidence
1. Events Preceding the March 4, 2017 Offenses
In March 2017, Maciel and Jane were in a dating relationship and had been living
in Maciel’s house for around three weeks. Jane decided to break up with Maciel and
move out of his house because they had been arguing about Jane’s three-year-old son
who lived with them three days each week. Jane was “terrified” that Maciel was going to
hurt her son because Maciel had recently threatened to throw the boy out of the boy’s bed
3 Although not relevant to Maciel’s claim that the court erroneously denied his pretrial motion for mental health diversion (§ 1001.36), the evidence presented at trial is relevant to Maciel’s claims of section 654 sentencing error, as we demonstrate post.
4 and onto the floor. Maciel also told Jane that he wanted her to spend less time with her
son, to give up some of her custody time, and to stop seeing her friend, B.S. He told Jane
that he did not “come second to anybody.” Jane felt very unsafe and told B.S. that she
“had to get out” of Maciel’s house.
Jane did not initially tell Maciel that she was breaking up with him and moving
out. During the evening of March 3, 2017, while Maciel was working the 7:00 p.m. to
7:00 a.m. shift as a nurse at a hospital, Jane began packing her things at Maciel’s house.
B.S. had advised Jane to pack when Maciel was not at home because B.S. could “sense”
that Jane was concerned for her safety. B.S. was planning to help Jane move her things
to B.S.’s home.4
While at work during the evening of March 3, 2017, Maciel sent numerous texts
and other communications to Jane, asking what she was doing, complaining that she was
not responding to his messages and complaining that she had not asked him how his night
was going, and directing her to unfriend one of his friends on social media, among other
things. At one point, Jane texted Maciel that she had been busy cleaning the house.
Around 9:00 p.m., before she left the house with B.S., Jane left a note for Maciel at his
house, together with a ring he had given her. The note stated that Maciel’s “threats and
behavior” had “creat[ed] an unsafe and unstable environment,” and that Jane could no
longer have her son in the house with Maciel for “fear of what’s going to happen next.”
4 Several months earlier, Maciel texted B.S., asking her not to invite Jane out anymore because they were in a relationship. This made B.S. believe that Maciel was “controlling and jealous.”
5 Around 9:40 p.m., Maciel texted Jane, complaining that she was not answering his
calls. Around 10:44 p.m., it was apparent that Maciel had left work and had been back at
his house because he texted Jane, asking her why she was leaving and whether she had
taken his wallet, which he claimed was missing. Around the same time, 10:44 p.m., Jane
and B.S. were on their way back to Maciel’s house to pick up a second load of Jane’s
things, when Maciel’s car came speeding past Jane and B.S., nearly forcing B.S.’s car off
the road. Because of the road incident, B.S. did not want to return to Maciel’s house, so
B.S. and Jane returned to B.S.’s home. Later that night, Maciel sent another message to
Jane, demanding to know whether she was at B.S.’s house because he had seen B.S.’s car
on the way to his house.
On the morning of March 4, 2017, Jane arranged with Maciel to pick up the rest of
her things. This time, Jane’s friend Mary agreed to help Jane pick up the rest of her
things from Maciel’s house. Mary and Jane arrived at Maciel’s house around 12:16 p.m.
On the way there, Jane told Mary that Maciel had been “not very nice” and “very
mentally abusive” to her.
When Maciel came to the gate outside his house to let Jane and Mary inside, his
demeanor was “standoffish and upset.” He asked Jane who she was living with, and Jane
said, “ ‘Can I please get my stuff?’ ” Maciel stood by the front door and watched as
Mary and Jane carried two loads of Jane’s things to Mary’s car. The front door stayed
open.
6 2. Jane and Mary’s Account of the Offenses
After Jane and Mary came back inside the house to retrieve the last of Jane’s
things, Maciel asked Jane, “ ‘So, we are done?’ ” and Jane said, “ ‘Yeah.’ ” Mary was
several feet inside the front door, facing away from the door. Jane was inside the house
facing the door, and Maciel was standing inside the house and in front of the door, which
was now closed. Jane saw that Maciel then “pulled a screwdriver out of his pocket, . . .
grabbed [Mary] from behind, and started stabbing her.” Maciel had two screwdrivers,
one in each hand.
Mary felt a sharp pain in the back of her head and neck, and fell to the floor. Jane
screamed, “ ‘My God, what are you doing to her?’ ” While on her hands and knees on
the floor, Mary recalled “being hit really hard over and over,” mostly on her head,
shoulders, and neck. The attack then suddenly stopped. Mary tried to dial 911 on her
cell phone, but she was unable to unlock her phone.
While Maciel was attacking Mary, Jane ran to the front door but was unable to
unlock it; so, she ran to the sliding glass door at the back of the house, but that door was
also locked. When Jane first tried to leave through the front door, Maciel stopped
attacking Mary and went after Jane. When Jane was by the back, sliding glass door,
Maciel attacked Jane with a screwdriver; he grabbed the back of her head with one hand,
and shoved a screwdriver into her mouth with his other hand, dislodging two of her teeth.
Jane fell to the floor. Maciel then went back after Mary, who by this time was trying to
open the front door.
7 Mary was able to get her shoulder and elbow outside the front door, but Maciel
pulled her back by her ponytail and slammed the door shut. He then pushed Mary to the
floor and attacked her a second time. While straddling her body on his knees, he beat
Mary, on both sides of her head, shoulders, face, and neck. Mary could not see whether
Maciel had anything in his hands, but she could see that his hands were moving “fast and
hard.” Mary covered her head and face with her hands to protect herself. Mary did not
recall passing out, but she awoke to the sound of Jane screaming in the backyard. Jane
was saying, “ ‘Oh, my God. What are you doing to me?’ ” Mary unlocked the front
door, ran outside, and shouted to the mail carrier to call 911.
While Maciel was attacking Mary the second time, Jane had gotten up from the
floor, unlocked the back door, and ran into the backyard. Jane was unable to get out of
the backyard because the backyard gate was locked from the outside. Jane saw a
neighbor and was yelling for help. Jane then saw Maciel come out of the house with two
screwdrivers in his hands. Jane fell to the ground and raised her hands and feet to protect
herself.
Maciel bent over Jane and began stabbing her in the face with a screwdriver while
she begged him to stop, apologized, and told him she would not leave. Maciel did not
respond to Jane’s pleas; he stabbed her in her left eye, ear, and throat, and he tried to stab
her in her chest. He lodged a screwdriver rod in Jane’s left eye socket. Jane recalled that
the attack in the backyard lasted two to three minutes and stopped when someone chased
Maciel away.
8 3. M.B.’s Intervention
The mail carrier, M.B., was completing his route near Maciel’s house at the time
of the attacks. Mary approached M.B., with blood all over her face, and said, “He is
going to kill her.” M.B. heard “banging and crashing” in Maciel’s backyard and looked
over a fence and into the backyard. Maciel was pushing and hitting Jane; Jane was
pushing back defensively; and a metal rod was sticking out of Jane’s face. A neighbor
called the police.
M.B. began yelling at Maciel to stop. After a brief time, Maciel stopped attacking
Jane and left the backyard through a carport area, walking in the opposite direction from
where M.B. was standing on the other side of the fence, yelling at him. Jane appeared
confused and began to wander toward the carport. M.B. yelled at Jane not to go that way
because Maciel had gone that way, but Jane was saying that she had to get out of there.
Before Jane could leave the backyard, Maciel returned from the carport area with
two screwdrivers in his hands and began attacking Jane again—for the third time. At that
point, M.B. jumped over the fence to stop Maciel. Jane was on her back, and Maciel was
on top of her, facing her. M.B. jumped on Maciel’s back. Maciel stood up, made eye
contact with M.B., then walked away, again leaving the backyard through the carport.
Shortly thereafter, the police arrived.
4. The Aftermath of the Attacks
Maciel was inside his house when the police arrived. He sent a series of texts and
social media messages to his friends and family, saying he had tried to kill Jane and he
9 was going to kill himself. He also texted, “I had to give that bitch what she deserves.”
Around 3:00 p.m., on March 4, Maciel surrendered to the police.
While in custody on March 5, Maciel initiated a conversation with a Riverside
County sheriff’s deputy. He told the deputy that he became “extremely mad” at Jane
after she came over to get her things, explaining that an “argument broke out,” and she
shoved or “pushed” him. He admitted he stabbed Jane in the face with a screwdriver; and
he also told the deputy that if he could not have Jane then no one else would have her
either.
5. Character Evidence
The defense elicited character evidence about Maciel in its cross-examination of
prosecution witnesses. Several of Maciel’s friends testified that they were shocked when
they received Maciel’s texts following the assaults on Jane and Mary. They knew Maciel
to be a “very kind, gentle person,” and the attacks were “completely” out of character for
him. M.B. also testified on cross-examination that Maciel had always been polite to him
and that Maciel’s behavior on March 4 was unlike anything he had ever seen Maciel do.
Jane testified that Maciel had initially been “gentle and sensitive and emotional” in
their relationship. He was supportive of her role as a mother, and he had a budding
friendship with her son. But he later began to exhibit signs of aggression and irritability,
and he would lose his temper over small things. He had never been physically violent
with Jane before March 4, but Jane acknowledged that she had once been physically
violent with him. She once punched Maciel in his arm after he would not stop arguing
with her and would not stop “pushing” her about her wanting to participate on a social
10 media site. Maciel was “very paranoid,” and he would ask Jane multiple questions about
her contacts with other people.
6. Jane’s and Mary’s Injuries
Jane and Mary suffered substantial and extensive physical injuries. A screw or
part of a screwdriver was embedded in Mary’s jaw and had to be surgically removed
through a puncture wound in her ear. Mary also had a depressed scull facture; multiple
fractures on her face; deep cuts on her face and hand; two puncture wounds on her arm;
and stab wounds, scratches, and bruises on her face, neck, wrist, and under her breasts.
Mary had permanent scarring on her face and other areas of her body.
Jane required four surgeries, including a craniotomy to remove the screwdriver rod
from her left eye socket, which was piercing her brain. Jane’s left ear drum was
shattered, and she permanently lost hearing in her left ear. Her left eye permanently
“drooped” due to muscle loss around the eye, and she could see a “floater” or black spot
in her left eye.
Jane’s face and throat were also punctured; she had multiple facial fractures;
permanent scarring on her head, face, and throat; and the left side of her lip was
permanently numb. She lost one tooth and another tooth was pushed forward, causing
her speech to be impaired for several months. She was unable to walk or stand without
assistance for around three months after the attacks. At the time of trial, two years after
the attacks, she was unable to walk in a straight line and suffered from depression, panic
attacks, and posttraumatic stress disorder.
11 B. Defense Evidence
1. Maciel’s Account of the Assaults
Maciel testified that Jane gave him “a little push” when she first walked into his
house on March 4, 2017. After Jane and Mary took two loads of Jane’s things out of the
house, Jane said to Maciel, “ ‘Have a nice life, dude,’ ” to which he responded,
“ ‘Whatever.’ ” Jane then pushed him again, this time knocking him down.5 Jane then
grabbed a screwdriver—there were “tools all over the living room”—and “nick[ed]”
Maciel in the back of his head with it. Maciel got up and Jane “lunged” at him; he then
took the screwdriver from Jane and “busted out her teeth.” Mary then tried to take the
screwdriver from him, and he hit Mary in Mary’s face with the screwdriver.
Jane then ran into the backyard through the back door, and Mary ran outside
through the front door. The front door was never closed. Jane started “coming at” him
again; he hit Jane in the face with the screwdriver a couple more times; and Jane
“struggled” to get the screwdriver from him. During the struggle, he inserted the
screwdriver into Jane’s eye socket. He admitted that he stabbed Jane in the face with the
screwdriver at least four or five times.
M.B. then jumped on his back, he “snapped out of [it],” and everything seemed
like “a bad dream.” He looked at M.B., then he walked back into his house. He denied
walking away from Jane after he inserted the screwdriver into her eye socket, then
coming back and attacking her again with two screwdrivers, as M.B. had testified. After
5Maciel is six feet three inches tall and weighed over 250 pounds on March 4, 2017.
12 he snapped out of it, he realized what had happened and that he had badly hurt Jane. He
thought everyone would think that he tried to kill Jane, that no one was going to like him,
and that he was “never going to be able to get a girl ever again.” He went into his
bathroom with a shotgun and a “bunch of knives,” planning to kill himself.
2. Maciel’s Steroid Use
Maciel further testified that he was born in 1985 and was “the chubby, fat kid
growing up.” He was “a late bloomer” and did not have a girlfriend until he was age 21.
That relationship ended, and he did not have another girlfriend until he was age 29 or 30.
Meanwhile, he was very focused on school, and it was difficult for him to meet women.
He began working out in high school, and he later pursued bodybuilding. Around
2011, he began using anabolic steroids to build his muscles. He believed that the
discipline he had developed through working out would allow him to handle the side
effects of the steroids he was using, which included irritability and mood swings. But
after using steroids for 18 to 24 months, he began using additional steroids and having
“very wild mood swings.” He continually used steroids until two days before
March 4, 2017, which was the last time he injected the drug. He had increased his
steroids dosages, beginning on January 1, 2017. He considered himself a “veteran”
steroid user. At the time of trial, he was “a lot more calm” because he had not been using
steroids for two years.
After he first began using more steroids, around 2013, he felt “invincible” and
became more aggressive. People would ask him why he had been “snappy” when he had
not realized that he had been. While dating the girlfriend he had when he was age 29 or
13 30, he felt “competitive” and “jealous,” and he wanted to be “dominating.” When that
relationship ended, he felt “very betrayed.” Shortly thereafter, he met Jane through a
dating website. He told Jane that he was using steroids.
Because of his steroid use, he became “paranoid” in the “extreme” and suspected
Jane was cheating on him. He would search her phone for evidence of infidelity, and he
often became upset when Jane and her son were living with him. Jane once told Maciel
that she was afraid of him. She also told him that she hit him in the arm “after 30 minutes
of pretty severe mental abuse and asking [him] to stop several times.” After he went to
work on the evening of March 3, 2017, he became suspicious that Jane was moving out.
While driving “really fast” to get to his house later that evening, he saw B.S.’s car, but he
denied trying to run B.S. off the road or scare B.S. and Jane. When called as a defense
witness, Jane testified that Maciel told her he was using steroids around two weeks after
they began dating in mid-2016. She suspected that Maciel’s steroid use was causing his
paranoia and aggressive behavior.
3. Character Evidence
Maciel’s father testified that Maciel was “noble” and “caring”; liked to help
others; and had been taught “good manners” and “how to be nice to people.” He had
never been in trouble with anyone.
4. Expert Testimony on Effects of Steroid Use
A forensic psychiatrist, Dr. Suzanne Dupee, testified for the defense as an expert
on the effects of anabolic steroid use. Chronic anabolic steroid use, over a long period of
time, can cause mania, irritability, paranoia, and aggressiveness, resulting in violence. A
14 related effect is sudden and severe rage, known as “roid rage,” which can be triggered by
minimal or no provocation. Maciel was taking sufficient steroids to cause these effects,
and sleep deprivation can exacerbate these effects.
C. Prosecution Rebuttal Evidence
Photos of Maciel’s front and back, taken when he was in custody on
March 4, 2017, showed that he had a small scratch on the left side of his neck but did not
show that he had any other injuries to his head or neck. A competitive bodybuilder,
M.K., who had used steroids for years, testified that, in his experience, using steroids can
cause unstable moods and irritability; but, without other drugs, steroids do not cause
paranoia, aggressiveness, or violent behavior.
D. Defense Surrebuttal Evidence
When Maciel was booked into jail on March 4, 2017, he tested negative for
methamphetamine, cocaine, heroin, and marijuana. He was not tested for steroids.
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Maciel’s Pretrial Motion
for Mental Health Diversion (§ 1001.36)
Maciel claims the trial court abused its discretion in denying his pretrial motion
for mental health diversion. (§ 1001.36.) He claims insufficient evidence supports the
court’s finding that his diagnosed mental health disorder, schizoaffective disorder, was
not a significant factor in his commission of the charged offenses. (§ 1001.36,
subd. (b)(1)(B).) He further claims that the court applied incorrect legal standards in
15 making two additional findings: (1) that the psychologist who diagnosed his disorder did
not provide a sufficient basis for her opinion that the disorder would respond to treatment
(id., subd. (b)(1)(C)), and (2) that he posed an unreasonable risk of danger to public
safety—that is, he was reasonably likely to commit a super strike offense—if he were
treated for his disorder in the community (see id., subd. (b)(1)(F)).
We conclude that substantial evidence supports the first finding, and that the court
applied the correct legal standards in making the second and third findings. Thus, we
conclude that the court did not abuse its discretion in denying the motion.
1. Section 1001.36, Eligibility Requirements
Section 1001.36 authorizes courts to grant pretrial diversion to defendants who
meet the statute’s six qualifying criteria or eligibility requirements. (§ 1001.36,
subds. (a), (b)(1); People v. Williams (2021) 63 Cal.App.5th 990, 995.)6 For purposes of
section 1001.36 “ ‘pretrial diversion’ ” means “the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process from the point at which
the accused is charged until adjudication, to allow the defendant to undergo mental health
treatment,” for a period not to exceed two years. (§ 1001.36, subd. (c).) If mental health
diversion is granted and the defendant satisfactorily completes the court’s approved
6 Section 1001.36 was enacted effective June 27, 2018 (Stats. 2018, ch. 34, § 24; People v. Williams, supra, 63 Cal.App.5th at p. 995) after Maciel was alleged to have committed the charged offenses on March 4, 2017, but before he filed his pretrial motion for mental health diversion in December 2018. Section 1001.36 applies retroactively to all criminal cases in which the judgment of conviction and sentence is not final. (People v. Frahs (2020) 9 Cal.5th 618, 626, 630.) Maciel’s judgment is not final, and Maciel timely moved for mental health diversion before his trial began. (People v. Braden (2021) 63 Cal.App.5th 330, 334.)
16 mental health treatment program, then the defendant’s criminal charges are required to
be dismissed and the defendant’s arrest on the charges “shall be deemed never to have
occurred.” (§ 1001.36, subd. (e).)
In order for a defendant to qualify for pretrial mental health diversion, the court
must first be “satisfied that the defendant suffers from a mental disorder as identified in
the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders . . . .” (§ 1001.36, subd. (b)(1)(A).) Second, the court must also be “satisfied
that the defendant’s mental disorder was a significant factor in the commission of the
charged offense.” (Id., subd. (b)(1)(B).)
Third, “[i]n the opinion of a qualified mental health expert, the defendant’s
symptoms of the mental disorder motivating the criminal behavior would respond to
mental health treatment.” (§ 1001.36, subd. (b)(1)(C).) The third criterion is not met
unless the court is “satisfied that the recommended inpatient or outpatient program of
mental health treatment will meet the specialized mental health treatment needs of the
defendant.” (Id., subd. (c)(1)(A).) And, before approving a proposed mental health
treatment program, the court “shall consider the request of the defense, the request of the
prosecution, the needs of the defendant, and the interests of the community.” (Id.,
subd. (c)(1)(B).)
Fourth, the defendant must consent to diversion and waive the right to a speedy
trial. (§ 1001.36, subd. (b)(1)(D).) Fifth, the defendant must agree to comply with
treatment as a condition of diversion. (Id., subd. (b)(1)(E).)
17 Sixth, the court must be “satisfied that the defendant will not pose an unreasonable
risk of danger to public safety, as defined in Section 1170.18, if treated in the
community.” (Id., subd. (b)(1)(F).) In determining whether the sixth criterion is met,
“[t]he court may consider the opinions of the district attorney, the defense, or a qualified
mental health expert, and may consider the defendant’s violence and criminal history, the
current charged offense, and any other factors that the court deems appropriate.”
(§ 1001.36, subd. (b)(1)(F).)
More generally, in determining whether each of the six criteria are met, the court
is required to consider “the positions of the defense and prosecution.” (§ 1001.36,
subd. (a).) The defendant has the burden of making a prima facie showing of his or her
eligibility for mental health diversion and that the defendant and the offenses are suitable
for diversion. (People v. Frahs, supra, 9 Cal.5th at p. 627.) “If the defendant makes a
prima facie showing that he or she meets all of the threshold eligibility requirements and
the defendant and the offense are suitable for diversion, and the trial court is satisfied that
the recommended program of mental health treatment will meet the specialized mental
health treatment needs of the defendant, then the court may grant pretrial diversion.
(§ 1001.36, subds. (a), (b)(3), & (c)(1).)” (Ibid.)
2. Maciel’s Motion for Pretrial Mental Health Diversion
(a) Dr. Berkowitz’s report and conclusions
In support of his motion, Maciel submitted a report by clinical and forensic
psychologist Alice R. Berkowitz, Ph.D. In her report, Dr. Berkowitz wrote that she had
completed a “full psychosocial and psychological testing evaluation” of Maciel “to
18 determine his personality structure, history,” and whether he qualified for pretrial mental
health diversion under section 1001.36.
In preparing her report, Dr. Berkowitz reviewed the preliminary hearing transcript,
a police report of the crimes, and two reports by district attorney investigators. On
November 2, 2018, Dr. Berkowitz interviewed Maciel in custody for approximately two
and one-half hours. Over approximately five additional hours on the same day, Maciel
completed a series of psychological tests. Based on all of this information, Dr. Berkowitz
concluded that Maciel suffered from a qualifying mental health disorder, namely,
“schizoaffective disorder—bi-polar type.” (§ 1001.36, subd. (b)(1)(A).) The doctor’s
report includes the following additional information and conclusions:
Maciel’s History: Maciel was born in 1985 “to an intact family”; his parents were
still married; and he had one older brother. He described his childhood as “average” but
felt his parents were “much harder on him than his brother.” “He liked school, and he did
well in school,” but he said he, “always felt invisible and ‘like [he] did not fit in
anywhere.’ ” In school he had “very few friends”; he was “chubby”; and he did not date
until the end of high school. He did not have a girlfriend until age 20. He reported being
“depressed most of his life” and having “never received help for his depression or
suicidal ideation.” He “spent a great deal of time alone playing video games.”
At age 23, he “felt acutely suicidal.” He devised a plan to commit suicide but “at
the last minute, he kept thinking about all the people [who] were always ‘out to get’ him”
and “decided that if he killed himself, they would all like it.” He did not kill himself, so
as not to “give those people the satisfaction.” He pursued a nursing career, completing a
19 three-year nursing program, and received his “RN degree.” He was employed as a
registered nurse for seven months before the charged offenses occurred on March 4,
2017. He denied abusing alcohol or illicit drugs, “with the exception of his steroid
abuse.” He began using steroids around 2012 to “build himself up” and “aid” his self-
esteem. He injected steroids on a daily and twice weekly basis. The steroids made him
feel “ ‘stronger,’ ” but also made him feel “irritable, angry, paranoid, and added to his
depression.” On steroids, he had trouble sleeping and “controlling his impulses.”
Maciel’s “Mental Status Examination”: During the interview, Maciel “was
focused,” “answered questions in a polite manner,” and appeared to be “of at least
average intelligence.” His affect was “somewhat flat and mood labile,” although he said
he felt “positive throughout” the interview. He spoke of his suicidal ideation that had
been “present since his teen years,” and of “having enormous amounts of energy at times
and then ‘crashing’ when his depression sets in.” His interview responses were
“appropriate” and “there was no evidence of overt psychotic processes.” But he
demonstrated “paranoid and grandiose thinking” in his responses, and “other elements of
a thought disorder in the way he described events in his life and the current incident.”
“The presence of delusions was evident in his responses, particularly about people being
out ‘to get’ him. His social isolation seems a way that he copes [with] these fears and
delusions. He clearly sees people as dangerous.”
Maciel’s Psychological Test Results: Maciel responded inconsistently to some
psychological test items, and he tended “to over-report and under-report symptoms”; but
his test results in Dr. Berkowitz’s opinion still “suggest[ed] a valid profile.” His
20 responses were consistent with “severe psychopathology” and indicated “serious and
pervasive thought dysfunction.” His “[d]ysfunctional thinking include[d] ideas of
persecution and aberrant perceptions and thoughts. He was “likely to be suspicious of
others, to have interpersonal difficulties as a result, . . . and to lack insight.” He was
“likely to be hostile to others and feel alienated from people.”
He also “appear[ed] to demonstrate rapid and extreme mood swings, persecutory
and disorganized thinking, irritability, and impulsivity. He responds as having a very
high activity level that can be associated with manic or hypomanic episodes. It is hard to
know whether these were the result of his prolonged steroid use or part of his
psychopathology. . . . [S]uch an activity level was not noted in his behavior and speech
during the evaluation.” He “appear[ed] to have a marginal hold on reality, which is
heightened by his social isolation, socially awkward behaviors, and suicidal ruminations.
There is no evidence of sociopathy or psychopathy in his testing. If anything, [he] suffers
from profound guilt, depression, and feelings of alienation.” His “STAX1-2” test results
suggested that he “struggles with feelings of irritability and anger . . . . Along with this,
[he] tends to get angry and hold a grudge. With a thought disorder and other psychotic
symptomatology, it is possible for [him] to become angry to a boiling point, where he
either acts out his anger or takes actions that are high risk to himself.”
The report concluded: “[I]t is clear” that Maciel “suffer[s] from a psychotic
disorder, whereby he experiences delusions, probable hallucinations, excessive mood
swings from hypomania to severe depression. These symptoms have appeared to be
present since his puberty or his early teens. His use of the mix of steroids that he
21 informed this expert of, could only have worsened the symptoms and pathology that were
already present, but would not have been the cause of it. It is clear that [his] mental
health issues were the significant factor in these offenses. His paranoia and delusions
made him feel like he was in danger, and he reacted in a violent manner as a result.”
After diagnosing Maciel as having “DSM V: Schizoaffective Disorder (295.70-
Bipolar type),” the report further concluded that “it appear[ed]” Maciel qualified for
mental health diversion under section 1001.36. Dr. Berkowitz summarily opined that
Maciel “would respond and benefit significantly from both psychopharmacological
treatment and psychotherapy focusing on cognitive behavioral therapy. In addition, and
most importantly, . . . Maciel would not pose a risk to the public safety participating in
the diversion program.”
(b) Character references
As further support for his motion, Maciel submitted over 30 letters from friends
and family members, attesting to his good character, intelligence, and reputation for
courtesy, kindness, and compassion toward others.
3. The People’s Opposition
The People filed a written opposition to the motion. Among other things, the
People argued that the court should not be satisfied that Maciel suffered from
schizoaffective disorder—bipolar type, calling the diagnosis “outrageous and far-
reaching to meet the prima facie showing.” The People pointed out that Dr. Berkowitz’s
report did not mention the more than 30 letters from Maciel’s friends and family—the
“character references”—attesting to Maciel’s “intelligence,” “service to others,” and
22 reputation for being an “overachiever” and “overly compassionate.” These character
references, the People argued, “completely contradict[ed]” Dr. Berkowitz’s diagnosis of
Maciel having schizoaffective disorder—bipolar type. Nor did the doctor’s report
mention, or attempt to reconcile with its diagnosis, that Maciel was planning to marry. In
October 2018, Maciel filed a motion to obtain his identification so he could obtain a
marriage license.
The People argued that Maciel’s feelings of isolation, fears, delusions, and views
of others as dangerous were likely due to two things: Maciel’s involvement in a physical
altercation with other jail inmates on March 5, 2017, and Maciel’s witnessing another
physical altercation between two other inmates on March 23, 2018. The People also
argued that Maciel’s feelings of guilt, depression, and alienation were “completely
normal and understandable,” given the severity of the charges and sentences he was
facing, “after trying to torture and murder two innocent women . . . .”
Based on this additional evidence, the People further argued that the court “should
not be satisfied” that (1) Maciel’s mental health disorder was a significant factor in his
commission of the charged offenses (§1001.36, subd. (b)(1)(B)); (2) Maciel’s mental
health disorder symptoms would respond to treatment, despite Dr. Berkowitz’s
conclusory opinion that they would (§ 1001.36, subd. (b)(1)(C)); or (3) Maciel would not
pose an unreasonable risk of danger to public safety if treated in the community.
(§ 1001.36, subd.(b)(1)(F)). Again, the People pointed out that Maciel’s character and
reputation for being “overly compassionate” and his current desire to marry a “new found
love” were completely inconsistent with his diagnosis of schizoaffective disorder—
23 bipolar type. And, because Maciel had no qualifying mental health disorder, there was
no mental health treatment program or plan that would treat the symptoms of his
nonexistent disorder. Maciel’s decision to harm his victims, the People argued, was
“calculated and planned.”
4. The Trial Court’s Ruling
The court denied the motion following a brief hearing on January 4, 2019. The
court first found that Maciel had a qualifying mental health disorder, namely,
schizoaffective disorder, noting there was “a sufficient level of credibility” to support the
diagnosis. But the court found “completely lacking” any causal connection between
Maciel’s schizoaffective disorder and his alleged criminal conduct on March 4, 2017.
The court pointed out that Dr. Berkowitz said that there was a connection “without really
explaining why or giving any supporting information.” The court also found lacking in
evidentiary support the doctor’s conclusion that Maciel’s mental health symptoms would
respond to treatment. The court noted that the doctor recommended “counseling” and
“pharmacological intervention” but did not explain “what course would be necessary,”
what the “likely effect” or “outcome” of the treatments would be, or how long the
treatments would take.7
Lastly, the court found that Maciel would pose an unreasonable risk of danger to
public safety if treated in the community. On this point, the court reasoned: “The doctor
is very clear that Mr. Maciel suffers from a serious and pervasive thought disfunction,
7 Two years is the maximum period during which criminal proceedings may be diverted under section 1001.36. (§ 1001.36, subd. (c)(3).)
24 auditory and visual hallucinations. He has significantly impaired reality testing. He
lacks insight. He is emotionally [labile], impulsive, irritable; he has a marginal hold on
reality. [¶] That coupled with her final conclusion that he demonstrated impulsivity,
poor judgment, and excessive anger at times, which appears to be perhaps what
manifested in this case. I am a little bit unclear. Nonetheless, someone with that tenuous
a hold on reality, I don’t think is someone [who] can be treated safely in the community
under any standard; therefore, I will find that . . . there is insufficient information before
me to make a prima facie finding [of Maciel’s eligibility for pretrial mental health
diversion].”
5. Standard of Review
We review a court’s order denying a motion for pretrial mental health diversion
for an abuse of the court’s discretion. (People v. Moine (2021) 62 Cal.App.5th 440, 448-
449; § 1001.36, subd. (h) [The court exercises its discretion in determining whether to
grant mental health diversion.].) “[A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 377.) But “[a] court abuses its discretion
when it makes an arbitrary or capricious decision by applying the wrong legal standard
[citations], or bases its decision on express or implied factual findings that are not
supported by substantial evidence.” (People v. Moine, at p. 449.) “Substantial evidence
‘means evidence that is “reasonable, credible and of solid value; it must actually be
substantial proof of the essentials that the law requires in a particular case.” ’ ” (In re
Alexander C. (2017) 18 Cal.App.5th 438, 446.)
25 6. Analysis
(a) The second eligibility criterion (§ 1001.36, subd. (b)(1)(B))
We begin with Maciel’s claim that insufficient evidence supports the court’s
finding on the second eligibility criterion, namely, that his diagnosed mental health
disorder, schizoaffective disorder—bipolar type, was not a significant factor in his
commission of the charged offenses.
Section 1001.36, subdivision (b)(1)(B), requires the court to be “satisfied that the
defendant’s mental disorder was a significant factor in the commission of the charged
offense. A court may conclude that a defendant’s mental disorder was a significant factor
in the commission of the charged offense if, after reviewing any relevant and credible
evidence, including, but not limited to, police reports, preliminary hearing transcripts,
witness statements, statements by the defendant’s mental health treatment provider,
medical records, records or reports by qualified medical experts, or evidence that the
defendant displayed symptoms consistent with the relevant mental disorder at or near the
time of the offense, the court concludes that the defendant’s mental disorder substantially
contributed to the defendant’s involvement in the commission of the offense.”
As noted, in finding that Maciel’s schizoaffective disorder was not “a significant
factor” in his commission of the charged offenses (§ 1001.36, subd. (b)(1)(B)), the court
found that Dr. Berkowitz’s report was “completely lacking” in making any connection
between Maciel’s schizoaffective disorder and his commission of the charged offenses.
The court said, “[t]he doctor simply says there is a connection without really explaining
why or giving any supporting information.” Substantial evidence supports this finding.
26 As the People point out, in her report, Dr. Berkowitz did not explain why Maciel’s
schizoaffective disorder was a “significant factor” in his commission of the charged
offenses. To be sure, the doctor stated that Maciel’s “mental health issues” were “the
significant factor” in his commission of the charged offenses, and that his “paranoia and
delusions made him feel like he was in danger, and he reacted in a violent manner as a
result.” But, as the court said, the doctor did not explain why Maciel’s schizoaffective
disorder was a significant factor in his commission of the charges offenses, nor did she
provide any supporting information to support this conclusion. The doctor did not
explain the symptoms and behaviors of individuals with schizoaffective disorder and how
such symptoms and behaviors were a significant factor in Maciel’s commission of the
charges offenses. Thus, the court reasonably concluded that Maciel did not make a prima
facie showing that his schizoaffective disorder was a substantial factor in his commission
of the charged offenses. (§ 1001.36, subd. (b)(1)(B).)
Additionally, based on the preliminary hearing transcript, the court could have
reasonably concluded that Maciel was motivated by his anger toward Jane in committing
the charged offenses, and that his paranoia and irrational (if actual) belief that others were
“out ‘to get’ him” was not a substantial factor in his commission of the charged offenses.
The People’s opposition stated that Maciel’s phone records showed that he had been
confiding in his close friends about his intention to kill Jane so that “nobody else could
have her,” before the charged offenses occurred. Further, the doctor’s report stated it was
“hard to know” whether Maciel’s “manic or hypomanic episodes” “were the result of his
prolonged steroid use or part of his psychopathology”; and that, during his evaluation, he
27 did not demonstrate a “high activity level,” which can be associated with manic and
hypomanic episodes. In addition, the report stated, “[t]here is no evidence of sociopathy
or psychopathy in his testing. If anything, [he] suffers from profound guilt, depression,
and feelings of alienation.” In these respects, the report tended to undermine its
conclusion that Maciel’s schizoaffective disorder—bipolar type, was a significant factor
in his commission of the charged offenses.
Maciel claims the court was “incorrect in finding the doctor simply made a
conclusory connection between the disorder and the conduct.” “In fact,” he argues, “the
report discussed the connection at some length.” He points to the report’s statements that
he “appear[ed]” to demonstrate “rapid and extreme mood swings, persecutory and
disorganized thinking, irritability, and impulsivity” during his evaluation, and that “it is
possible for [him] to become angry to a boiling point, where he . . . acts out his anger
. . . .” He also points to the report’s statements that “elements of a thought disorder” were
apparent “in the way he described events in his life and the current incident [i.e., the
charged offenses],” and that he “clearly sees people as dangerous.”
Again, however, the court could have reasonably credited the preliminary hearing
transcript over the conclusory and, at times, qualified statements in the report, both in
concluding that the report did not make a prima facie showing that Maciel’s
schizoaffective disorder, bipolar type, was a substantial factor in his commission of the
charged offenses, and in further concluding that the disorder was not a significant factor
in Maciel’s commission of the charged offenses. As the People argue, this is so, given
“the utter lack of specificity in the doctor’s report,” and “the strong evidence pointing to a
28 jealous rage,” as the motivating factor in Maciel’s commission of the charged offenses, as
detailed in the preliminary hearing transcript. In sum, the court’s finding that Maciel
failed to make a prima facie showing that his schizoaffective disorder was a significant
factor in his commission of the charged offenses is supported by substantial evidence, is
not outside the bounds of reason, and was, therefore, not an abuse of the court’s
discretion.8
(b) The third eligibility criterion (§ 1001.36, subds. (b)(1)(C), (c)(1)(A))
Maciel next claims the court applied an incorrect legal standard in “disregarding”
Dr. Berkowitz’s opinion that his schizoaffective disorder, bipolar type, would respond to
treatment. He asserts that, “the code does not permit the court to override [a]
psychologist’s opinion on this point.” We disagree.
As noted, the court found that Dr. Berkowitz did not provide a sufficient
evidentiary basis for her opinion that Maciel’s mental health symptoms, or his
schizoaffective disorder, would respond to mental health treatment. (§ 1001.36,
subd. (b)(1)(C).) The court said that the doctor’s report ”simply” stated, “It can be
treated,” and recommended “counseling” and “pharmacological intervention,” but did not
8 Maciel argues that the jury apparently agreed with the doctor’s assessment that, “his paranoia and delusions made him feel like he was in danger and he reacted in a violent manner as a result.” For reasons we explain post, in addressing Maciel’s section 654 claims, we agree with Maciel that the jury necessarily credited his trial testimony that he actually, albeit unreasonably, believed in the need to defend himself against Jane and Mary in finding him guilty of the lesser offenses of attempted voluntary manslaughter, based on unreasonable self-defense, in counts 1 and 2. But the trial court did not have Maciel’s trial testimony, or the jury’s verdicts, before it when it ruled on the pretrial motion for mental health diversion.
29 “explain what course would be necessary, what the likely effect would be, what the likely
outcome will be, [and] how long it would take. There is absolutely nothing. It is a very
conclusory statement. I don’t think there is enough” to make the showing. Substantial
evidence supports this finding, and the court did not apply an incorrect legal standard in
making it.
Section 1001.36, subdivision (b)(1), provides that the court may grant pretrial
diversion “pursuant to this section” if six criteria are met, including the following: “In
the opinion of a qualified mental health expert, the defendant’s symptoms of the mental
disorder motivating the criminal behavior would respond to mental health treatment.”
(§ 1001.36, subd. (b)(1)(C).) Maciel relies on this portion of the statute in arguing that
the statute does not allow the court “to override” a psychologist’s opinion that a
defendant’s symptoms “would respond” to mental health treatment.
Maciel’s argument disregards additional language in section 1001.36, which
requires the court, as a condition of granting pretrial diversion, to be “satisfied that the
recommended inpatient or outpatient program of mental health treatment will meet the
specialized mental health treatment needs of the defendant.” (§ 1001.36, subd. (c)(1)(A);
see People v. Frahs, supra, 9 Cal.5th at p. 627.)9 This condition was not met here.
9 Additionally, the trier of fact may reject the testimony of an expert witness, even if the witness’s testimony is uncontroverted, provided the court does not act arbitrarily. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; see People v. Combs (2004) 34 Cal.4th 821, 851.) Thus, the suggestion that expert witness testimony must be accepted no matter how weak, lacking in foundation, or erroneous, is untenable.
30 The doctor’s report stated that Maciel would “respond and benefit significantly
from both psychopharmacological treatment and psychotherapy focusing on Cognitive
Behavioral Therapy.” But, as the court said, the report did not explain what precise
course of treatment would be necessary, or how much treatment Maciel would require to
meet his specialized mental health needs. In the words of the court, the report did not
explain, “what course would be necessary, what the likely effect would be, or how long it
would take.” These showings were critical in order for the court to be able to determine,
and to be satisfied, that the doctor’s proposed treatment plan would meet Maciel’s
specialized mental health needs. (§ 1001.36, subd. (c)(1)(A).) The length of the
proposed treatment plan is also a critical showing, which was lacking here, given that two
years is the maximum period during which criminal proceedings may be diverted under
the statute. (§ 1001.36, subd. (c)(3).)
Thus, the court reasonably determined that it was not satisfied that the doctor’s
proposed plan of psychotherapy and psychopharmacological treatment for Maciel would
meet his specialized mental health needs. (§ 1001.36, subd. (c)(1)(A).) The court did not
apply an incorrect legal standard or abuse its discretion in making this finding.
(c) The sixth eligibility criterion (§ 1001.36, subd. (b)(1)(F))
Maciel further argues that the court applied incorrect legal standards, and thus
abused its discretion, in finding he would pose an unreasonable risk of danger to public
safety, as defined in section 1170.18, if he were treated for his mental health disorder in
the community. (§ 1001.36, subd. (b)(1)(F).) He claims the court made two legal errors
in making this finding: (1) the court did not address the likelihood that he would commit
31 a “ ‘super strike’ ” offense, as required by the statute, and (2) the court did not consider
his “dangerousness in the context of his dangerousness while receiving treatment.” We
disagree on both counts.
For purposes of section 1001.36, section 1170.18 defines “unreasonable risk of
danger to public safety” as “an unreasonable risk that the petitioner will commit a new
violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667.” (§ 1170.18, subd. (c).) Section 667,
subdivision (e)(2)(C)(iv) enumerates a particular set of so-called “super strike” offenses,
including, as relevant here, (1) “Any homicide offense, including any attempted homicide
offense, defined in Sections 187 to 191.5, inclusive” (§ 667, subd. (e)(2)(C) (iv)(IV)); and
(2) “Any serious or violent felony offense punishable in California by life imprisonment
or death” (§ 667, subd. (e)(2)(C) (iv)(VIII)). Two of the charged offenses against Maciel,
aggravated mayhem (count 4), and torture (count 3) are punishable by life imprisonment
(§§ 205, 206.1), and thus constitute super strikes.
In finding that Maciel would pose an unreasonable risk of danger to public safety
if treated in the community, the court relied on Dr. Berkowitz’s findings that Maciel
suffered from “a serious and pervasive thought dysfunction, auditory and visual
hallucinations” and “significantly impaired reality testing. He lacks insight. He is
emotionally [labile], impulsive, irritable; he has a marginal hold on reality. [¶] That,
coupled with the doctor’s final conclusion that he demonstrated impulsivity, poor
judgment, and excessive anger at times, which appears to be perhaps what manifested in
32 this case. . . . [S]omeone with that tenuous a hold on reality, I don’t think is someone
[who] can be treated safely in the community under any standard . . . .”
Although, as Maciel points out, the court did not expressly address whether he was
likely to commit a super strike if treated in the community, the record shows that the
court was well aware of the requirements for granting mental health diversion under
section 1001.36. As the court in People v. Moine, supra, 62 Cal.App.5th 449 recently
explained, “[b]y requiring an assessment of whether the defendant ‘will commit a new
violent felony’ within the meaning of section 667, subdivision (e)(2)(c)(iv), a trial court
necessarily must find the defendant is ‘likely to commit a super- strike offense.’ ” (Id. at
p. 450.) The court here effectively made this finding. The record shows that the court
read the preliminary hearing transcript and that Maciel was being charged with two super
strike offenses: aggravated mayhem and torture. In finding that Maciel posed an
unreasonable risk of danger to public safety if treated in the community, the court
effectively found that he was likely to commit aggravated mayhem or torture if treated in
the community, based on his current mental health symptoms.
Regarding Maciel’s claim that the court further erred in failing to consider whether
he was likely to commit a super strike offense while under treatment in the community
for his schizoaffective disorder, Maciel correctly points out that whether a defendant
poses an unreasonable risk of danger to public safety is “necessarily a forward-looking
inquiry” that accounts for the circumstances of his or her release. (See People v.
Williams (2018) 19 Cal.App.5th 1057, 1063.) And, indeed, Maciel would be required to
complete a court-approved mental health treatment plan if released on diversion.
33 (§ 1001.36, subd. (c)(1)(B).) Maciel faults the court for not discussing Dr. Berkowitz’s
proposed mental health treatment plan in determining that he would pose an unreasonable
risk of danger to public safety if released on diversion.
But, as the court pointed out, Dr. Berkowitz only recommended psychotherapy
and psychopharmacological treatment as Maciel’s treatment plan. Her report did not
include a detailed treatment plan, nor did it explain how Maciel would respond to
treatment or how long it would take him to respond, in any way, to treatment. The report
also did not address how Maciel’s treatment would cause him not to pose an
unreasonable risk of danger to public safety. As the People argue, “Because
Dr. Berkowitz’s report was so vague with regard to a treatment plan, it was impossible
for the court to evaluate whether [Maciel] would be dangerous while undergoing mental
health treatment.”
Thus, the court reasonably assumed that Maciel’s mental health symptoms would
continue if he were to be released in the community, even while undergoing
psychotherapy and psychopharmacological treatment. Lastly, the doctor’s report stated,
in conclusory terms and with no supporting explanation, that Maciel would not pose an
unreasonable risk of danger to public safety if released. But the current charges against
Maciel, as detailed in the preliminary hearing transcript, together with the doctor’s report
of his current mental health symptoms, indicated that Maciel was likely to commit torture
or aggravated mayhem if released on diversion, despite his lack of a criminal record and
his good reputation in the community before the charged offenses occurred.
34 B. Substantial Evidence Supports the Court’s Decision to Impose Separate, Unstayed
Sentences on Counts 1 through 7 (§ 654)
For several reasons, Maciel claims the court erroneously failed to stay the terms it
imposed on at least one of the three counts involving Mary (counts 2, 5, & 7) and on at
least two of the four counts involving Jane (counts 1, 3, 4, & 6). He claims, among other
things, that his crimes against Jane and Mary either arose from a single act or were part of
an indivisible course of conduct, undertaken with the sole intent and objective of killing
Jane and Mary. Thus, he argues, he could only be punished on one count, or at most two
counts, involving each victim. For reasons we explain, we disagree.
1. Relevant Background
Maciel was convicted in four counts involving Jane and in three counts involving
Mary, together with enhancements on counts 1, 2, 6 and 7. On the counts involving Jane
(counts 1, 3, 4, & 6), with enhancements, Maciel was sentenced to eight years on count 1
(attempted voluntary manslaughter), life with the possibility of parole on count 3
(torture), life with the possibility of parole on count 4 (aggravated mayhem), and two
years eight months on count 6 (felony domestic violence). On the counts involving Mary
(counts 2, 5, & 7), with enhancements, Maciel was sentenced to four years four months
on count 2 (attempted voluntary manslaughter), one year four months on count 5
(mayhem), and two years on count 7 (assault with a deadly weapon). The court imposed
consecutive terms on counts 1, 2, 5, 6, and 7; ordered the life term on count 4 to run
concurrent to the life term on count 3; and ordered the life terms on counts 3 and 4 to run
consecutively to the other counts.
35 At sentencing, the court expressly declined to stay any of the terms on Maciel’s
seven convictions and attendant enhancements. (§ 654.) The court explained: “The
court, having heard all the evidence and relying on [People v. Trotter (1992)
7 Cal.App.4th 363], it is imperative that the defendant’s punishment will be
[commensurate] with his culpability. [¶] The defendant’s conduct in this case became
more egregious with each successive attack and stab. Each stab and attack clearly
pose[d] a separate and distinct risk to both Mary Doe and Jane Doe. The assaults were
separated by periods of time in which reflection was possible.”
2. Applicable Law and Analysis
Section 654, subdivision (a), provides: “An act or omission that is punishable in
different ways by different provisions of 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.”
As used in the statute, an “ ‘act or omission’ ” may include a discrete single
physical act or a course of conduct encompassing several acts pursued with a single
objective. (People v. Corpening (2016) 2 Cal.5th 307, 311.) Section 654 prohibits courts
from imposing separate sentences, or multiple punishment, for a single physical act that
violates different provisions of law. (People v. Jones (2012) 54 Cal.4th 350, 358.) The
statute also “ ‘prohibits punishment for two crimes arising from a single indivisible
course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the
means of accomplishing or facilitating one objective, a defendant may be punished only
once. [Citation.] If, however, a defendant had several independent criminal objectives,
36 he may be punished for each crime committed in pursuit of each objective, even though
the crimes shared common acts or were parts of an otherwise indivisible course of
conduct. [Citation.] The defendant’s intent and objective are factual questions for the
trial court, and we will uphold its ruling on these matters if it is supported by substantial
evidence.’ ” (People v. Bui (2011) 192 Cal.App.4th 1002, 1015.)
As the People point out, section 654 does not apply in cases where multiple
criminal acts, though arguably incidental to a single intent and objective, are “separated
by periods of time during which reflection was possible” and the record shows that, in
committing each act, the defendant intended to inflict more harm, do more violence, or
obtain additional gratification. (People v. Trotter, supra, 7 Cal.App.4th at pp. 367-368
(Trotter) [multiple punishments properly imposed on multiple assaults based on multiple
shots fired at one victim, because each shot posed separate and distinct risks to victim,
even though all three shots were arguably incidental to single intent of scaring victim];
People v. Harrison (1989) 48 Cal.3d 321, 337-338 (Harrison) [multiple punishments
properly imposed on multiple sexual assaults (digital penetrations) of victim because
each act was intended to give the defendant additional sexual gratification]; People v.
Surdi (1995) 35 Cal.App.4th 685, 687-688 [multiple punishments properly imposed on
multiple stabbings of victim because each stabbing evinced a separate intent to do more
violence to victim].)
The facts of Trotter and Harrison are particularly instructive. In Trotter, the
defendant was separately punished on two of three counts of assaulting a police officer
with a firearm. (Trotter, supra, 7 Cal.App.4th at pp. 365-366.) The defendant, while
37 driving a stolen taxi cab, evaded the officer in a police pursuit on a freeway and, during
the pursuit, fired three gunshots at the officer’s vehicle. (Id. at p. 366.) On appeal, the
defendant claimed that his separate punishment on two of the three assaults violated
section 654 because the assaults were “ ‘part and parcel’ ” of a single course of conduct
and were incidental to his single objective of forcing the officer to end the pursuit. (Id. at
pp. 366-367.) Relying on Harrison, supra, 48 Cal.3d 321, the Trotter court disagreed.
(Ibid.)
Harrison involved a defendant’s commission of multiple sexual assaults (three
acts of digital penetration) on a single victim, on a single occasion, for which separate
punishments were allowed based on the defendant’s intent to obtain additional
gratification each time he penetrated the victim. (Harrison, supra, 48 Cal.3d at pp. 335-
338.) Given that the purpose of section 654 is to ensure that a defendant’s punishment
will be “ ‘commensurate with his culpability,’ ” Harrison reasoned that, when a
defendant intends to commit “a number of separate base criminal acts upon his victim,”
section 654 does not prohibit separate punishment for each act. (Harrison, at pp. 335-
338.) Harrison observed: “There is no legal or logical bar to separate punishment
where, as here, each of defendant’s ‘repenetrations’ was clearly volitional, criminal and
occasioned by separate acts of force.” (Id. at p. 338.)
Trotter saw “no reason to limit Harrison’s reasoning to sex crimes,” and noted
that, in Harrison, it “could not be seriously maintained that each sexual penetration
evinced a different type of intent and objective. Yet our Supreme Court held each could
be punished separately because their objectives and underlying intents were separate and
38 distinct.” (Trotter, supra, 7 Cal.App.4th at p. 367, italics added.) Trotter went on to
observe that the defendant’s conduct in the case before it “became more egregious with
each successive shot. Each shot posed a separate and distinct risk to [the officer] and
nearby freeway drivers. To find section 654 applicable to these facts would violate the
very purpose for the statute’s existence.” (Id. at pp. 367-368.) In addition, each shot
“required a separate trigger pull”; all three shots were “volitional and calculated”; and
were “separated by periods of time during which reflection was possible.” (Id. at p. 368.)
For similar reasons here, section 654 does not bar multiple punishment on any of
Maciel’s convictions against Jane and Mary in counts 1 through 7. Contrary to Maciel’s
arguments, which we address post, substantial evidence shows that Maciel attacked Mary
twice and attacked Jane three times. Moreover, during each attack, Maciel inflicted
multiple puncture wounds and other grievous injuries on Jane and Mary—enough
injuries, or individual acts, to separately support each conviction and to warrant unstayed
sentences on each conviction. As the court indicated in declining to stay any of Maciel’s
sentences, the evidence showed that each attack and stab clearly posed a separate and
distinct risk to Jane and Mary, and Maciel had ample time, between and during each
attack and stab, to reflect on the horrific nature of what he was doing and the multiple and
grievous injuries he was inflicting on Jane and Mary. Thus, the evidence amply supports
the court’s determination that imposing separate and unstayed sentences on counts 1
through 7 was necessary to make Maciel’s punishment commensurate with his
culpability. (Trotter, supra, 7 Cal.App.4th at p. 367.)
39 3. Maciel’s Section 654 Arguments Lack Merit
(a) Maciel’s arguments regarding counts 2, 5, and 7 (Mary)
Maciel first argues that the lesser terms on two of his three convictions involving
Mary—the one-year-four-month term imposed on count 5 (mayhem) and the two-year
term imposed on count 7 (assault with a deadly weapon)—were required to be stayed.
He argues that the jury, in acquitting him of the attempted premeditated murder of Mary
and in finding him guilty of the lesser offense of the attempted voluntary manslaughter of
Mary (count 2), necessarily credited his testimony that he only attacked Mary once—
after Jane attacked him with a screwdriver, he took the screwdriver from Jane, and Mary
tried to wrestle the screwdriver from him.
Thus, Maciel claims, his three convictions involving Mary were necessarily based
on his “single assault” of Mary, and his lesser sentences on counts 5 and 7 were required
to be stayed. He correctly points out that the trial court cannot “countermand the jury” by
making contrary factual findings in applying section 654. (People v. Bradley (2003) 111
Cal.App.4th 765, 770; People v. McCoy (2012) 208 Cal.App.4th 1333, 1339 [“[W]here
there is a basis for identifying the specific factual basis for a verdict, a trial court cannot
find otherwise in applying section 654.”].)
The premise of this argument is unsound. The jury did not necessarily reject
Mary’s testimony in finding Maciel guilty of the attempted voluntary manslaughter of
Mary in count 2. In count 2, the jury was instructed on attempted voluntary manslaughter
based on unreasonable self-defense but not based on a sudden quarrel or heat of passion.
(CALCRIM No. 604.) Maciel argues that, because Mary’s testimony did not provide a
40 basis for a finding that he attacked Mary in unreasonable self-defense, but his testimony
did, the verdict in count 2 “was necessarily based on [his] testimony.” This is not entirely
so.
To be sure, in finding Maciel guilty of the attempted voluntary manslaughter of
Mary, the jury reasonably could have credited Maciel’s testimony that he believed, albeit
unreasonably, that he needed to attack Mary in order to defend himself against imminent
danger from Mary or Jane. (CALCRIM No. 604.) At the same time, however, the jury
reasonably could have credited Mary’s testimony that her version of the attacks—that
Maciel attacked her twice and without provocation—was what actually happened.
There was uncontroverted evidence that Maciel had been using steroids for years
at the time of the attacks. And Dr. Dupee testified that chronic steroid use, over a long
period of time, can cause paranoia and aggressiveness, along with sudden and severe “
‘roid rage,’ ” which can be triggered by minimal or no provocation. But in convicting
Maciel of attempted voluntary manslaughter, rather than attempted murder or
premeditated attempted murder, in count 2, the jury did not necessarily reject Mary’s
testimony, or any part of it.
Alternatively, Maciel claims that even if the jury, and hence the trial court, could
have credited Mary’s testimony that there were two attacks on Mary, then one of his three
sentences on his three convictions involving Mary (the mayhem conviction in count 5
carried the least punishment) must still be stayed, given that he suffered three convictions
involving Mary based on two attacks on Mary. Again, we disagree.
41 The number of attacks on Mary is not the necessary touchstone for determining
whether separate punishment could properly be imposed on counts 5 and 7, in addition to
count 2, under section 654. As we have indicated, even though there were two separate
attacks on Mary, not three, Maciel’s convictions in counts 2, 5, and 7 are supported by
separate and distinct acts of violence against Mary, inflicted during the two attacks.
During the second attack, Maciel beat Mary on both sides of her head, shoulders,
face and neck, ostensibly inflicting Mary’s depressed skull fracture and the multiple
fractures on Mary’s face. These injuries supported Maciel’s conviction for the attempted
voluntary manslaughter of Mary in count 2. During one of the attacks, Maciel stabbed
Mary with a screw or part of a screwdriver, which had to be surgically removed through a
puncture wound in her ear. This injury supported the mayhem conviction in count 5.10
Mary also had two puncture wounds on her arm and other stab wounds on her body.
These injuries supported Maciel’s conviction in count 7 for assaulting Mary with a
deadly weapon, a screwdriver.
Regardless of the order in which these injuries were inflicted, or whether all of
these injuries were inflicted in one of the two attacks, it cannot be seriously denied that
each of these injuries posed a separate and distinct risk to Mary, warranting the
imposition of separate punishment on counts 2, 5, and 7. Separate punishment on
counts 2, 5, and 7 is in line with the imperative of section 654 that the defendant’s
10 Section 203 provides that mayhem occurs when a person, “maliciously . . . deprives a human being of a member of his body, or disables, disfigures, or renders it useless . . . .”
42 punishment be commensurate with his culpability. “The purpose behind section 654 is
‘to insure that a defendant’s punishment will be commensurate with his culpability.’ ”
(Trotter, supra, 7 Cal.App.4th at p. 367, quoting People v. Perez (1979) 23 Cal.3d 545,
552.) And, here, as in Trotter, “[d]efendant’s conduct became more egregious with each
successive [stab]. Each [additional stab] posed a separate and distinct risk to [Mary] . . . .
To find section 654 applicable to these facts would violate the very purpose for the
statute’s existence.” (Trotter, at p. 368.) Maciel could have stopped attacking Mary after
inflicting any one of the injuries supporting his convictions in counts 2, 5, and 7, but he
did not do so. Rather, he escalated the risk to Mary by continuing his violent acts.
“There is no legal or logical bar to separate punishment where, as here, each of
defendant’s [additional stabbing and beating attacks] was clearly volitional, criminal
and occasioned by separate acts of force.” (Harrison, supra, 48 Cal. 3d at p. 338.)
Maciel further argues that the prosecutor based both the mayhem charge (count 5)
and the assault with a deadly weapon charge (count 7) on the “chunk of metal” he left in
Mary’s “cheek” after he punctured her jaw with a screwdriver. For this reason, he
argues, his punishment on count 5, with enhancements (the one-year-four-month term)
should have been stayed because it was based on the same act as count 7. (People v. Pitts
(1990) 223 Cal.App.3d 1547, 1560 [Where mayhem and assault are based on one attack
on one victim, sentence on one offense must be stayed.].) But the record does not
support this argument.
To be sure, the prosecutor argued that the mayhem charge was supported by the
permanent disfigurement Mary suffered as a result of the piece of metal that had to be
43 surgically removed from her cheek (or jaw). But, regarding count 7, the prosecutor more
generally argued that Maciel’s overall or undivided act of generally attacking Mary with
one or more screwdrivers supported the assault charge because, “by its nature,” the
screwdriver attack on Mary would “directly and probably result in the application of
force” on Mary. (CALCRIM No. 875.)
The jury reasonably could have based its verdict in count 7 on any of the multiple
puncture wounds Maciel inflicted on Mary during the two attacks, other than the
depressed skull and facial fracture and the puncture wound to Mary’s jaw, which
supported counts 2 and 5, respectively. Thus, the record does not support Maciel’s claim
that the jury necessarily based its verdicts on counts 2 and 7 on the same act. (Cf. People
v. Corpening, supra, 2 Cal.5th at pp. 311-314 [“precisely the same” act of forcefully
taking victim’s van, with rare coins inside the van, completed actus reus or robbing the
victim of the coins and carjacking the victim of the van, and could only be punished once
under § 654].)
(b) Maciel’s claims regarding counts 1, 3, 4 and 6 (Jane)
Maciel argues that his sentences on two of his four counts involving Jane (counts
1, 3, 4, & 6) must be stayed because the evidence, at most, showed there were only two
attacks on Jane—one in the house and one in the backyard—and not three attacks on
Jane—one in the house and two in the backyard. Thus, he argues, “[a]s there were, at
most, two assaults, there could be, at most, two unstayed sentences.”
Again, we observe that the number of attacks on Jane is not the touchstone of
whether section 654 applies to counts 1, 3, 4, and 6. (Trotter, supra, 7 Cal.App.4th at
44 pp. 366-367.) Even so, the evidence shows there were three attacks on Jane. Maciel’s
argument that there were at most two attacks on Jane disregards Jane’s and M.B.’s
testimony, which collectively showed that Maciel attacked Jane three times—once in the
house and twice in the backyard. Jane testified that Maciel first attacked her in the house,
near the back door, and in doing so dislodged two of her teeth. Jane’s further testimony,
together with M.B.’s, showed there were two attacks on Jane in the backyard. M.B. saw
Maciel attacking Jane in the backyard and saw a piece of metal sticking out of Jane’s face
before he saw Maciel leave the backyard, return with two screwdrivers, and attack Jane
again—for the third time.
Maciel alternatively argues, as he did regarding count 2, that his conviction in
count 1 for the attempted voluntary manslaughter of Jane was necessarily based on his
testimony that he attacked Jane only one time, in the backyard. Thus, he argues, three of
his four sentences on counts 1, 3, 4, and 6 (all except one of the life terms imposed on
counts 3 & 4) were required to be stayed. We reject this argument for the reasons we
rejected the argument regarding the counts involving Mary, counts 2, 5, and 7.
In count 1, the jury was instructed on the attempted voluntary manslaughter of
Jane based on both unreasonable self-defense and a sudden quarrel or heat of passion.
The jury reasonably could have based its verdict in count 1 on the unreasonable self-
defense theory, crediting Maciel’s testimony that he believed, albeit unreasonably, that he
needed to defend himself against Jane (CALCRIM. No. 875), while at the same time
crediting Jane’s and M.B.’s testimony that Maciel attacked Jane three times. As
discussed, the evidence showed that Maciel had been using steroids for years, and that his
45 prolonged steroid use could have caused him to be paranoid, aggressive, and to fly into
sudden and severe “roid rage,” without provocation. But, in crediting this evidence,
including Maciel’s testimony about his prolonged steroid use, the jury did not necessarily
reject Jane’s and M.B.’s testimony, or any part of it.
Maciel next argues that his sentence on count 6 must be stayed in light of his
sentence on count 1, because these convictions were based on the same act. He correctly
points out that (1) the prosecutor did not elect to tie any of his conduct to counts 1 or 6,
and (2) no unanimity instruction was given. (CALCRIM No. 3500.) But even though the
prosecutor did not tie any of Maciel’s particular conduct to counts 1 and 6, as we have
indicated the record shows that Maciel’s convictions in counts 1, 3, 4, and 6 could have
been based on separate and distinct acts of violence, and separate physical injuries
inflicted, on Jane.
We first observe that the prosecutor did tie counts 3 and 4 to particular conduct.
She indicated that count 3 (torture) was based on defendant’s act of dislodging two of
Jane’s teeth with a screwdriver when he attacked her inside the house, and, given the
instructions, the jury reasonably could have based count 3 on this particular conduct.
(CALCRIM No. 810 [torture requires infliction of great bodily injury, intended to cause
cruel or extreme pain and suffering for the purpose of revenge or any other sadistic
purpose].) The prosecutor also indicated that count 4 (aggravated mayhem), was based
on Maciel’s act of deliberately sticking a screwdriver into Jane’s left eye socket, causing
her to permanently lose hearing in her left ear. The jury reasonably could have based its
46 verdict in count 4 on this particular conduct. (CALCRIM No. 800 [aggravated mayhem
requires intent to permanently disable or disfigure].)
Later during her argument, the prosecutor told the jury that it could base its verdict
in count 6 on any of Jane’s injuries, all of which were “very, very serious” and caused
Jane to suffer a traumatic condition. (CALCRIM No. 840 [infliction of injury on
cohabitant must result in traumatic condition, that is, a wound or other bodily injury,
whether minor or serious, caused by the direct application of physical force].) The
prosecutor said, “So when he is stabbing her numerous times in all of these places in her
body, in her ear, in her eye, in her neck, it resulted in a traumatic condition.” In light of
the prosecutor’s entire argument, the jury reasonably could have based count 6 on any of
the great bodily injuries or “very, very serious” injuries that Jane suffered, other than her
two dislodged teeth (count 3) and the screwdriver that pierced her left eye socket and
entered her brain (count 4). For example, the jury could have based its verdict on count 6
on Maciel’s act of puncturing Jane’s face with a screwdriver.
The prosecutor discussed counts 1 and 2 together, before she discussed counts 3,
4, and 6. She argued, among other things, that Maciel’s combined attacks on Jane and
Mary showed that he intended to kill both women. (CALCRIM No. 600 [attempted
murder].) But in light of the prosecutor’s entire argument, her discussion of count 1 with
count 2 did not preclude the jury from basing the “direct step” element of its attempted
voluntary manslaughter verdict in count 1 on different injuries to Jane than it based its
verdicts in counts 3, 4, and 6. (CALCRIM No. 603 [attempted voluntary manslaughter
requires at least one direct but ineffective step toward killing a person].) For example, in
47 addition to the injuries, discussed ante, that met the elements of counts 3, 4, and 6, Jane’s
throat was also punctured, and she suffered multiple facial fractures. Maciel’s separate
acts in inflicting the puncture wound to Jane’s throat, and in inflicting her facial fractures,
were sufficient to satisfy the direct step element of the attempted voluntary manslaughter
conviction in count 1. In sum, because the separate criminal acts, each intended to inflict
further injury and separated by sufficient amounts of time for reflection, support the
convictions in counts 1, 3, 4, and 6, the trial court did not abuse its discretion in imposing
separate punishment on these counts. (Trotter, supra, 7 Cal.App.4th at pp. 367-368.)
C. Maciel’s “Full” Three-year Base Term on Count 2 Is Unauthorized and Must Be
Stricken, and the Matter Must Be Remanded for Resentencing
As noted, the parties agree that the “full” consecutive three-year base term that the
court imposed on Maciel’s conviction in count 2 for the attempted voluntary
manslaughter of Mary was unauthorized and must be stricken. (§§ 1170.1, 1170.16.)
We agree that this term was unauthorized under section 1170.16. Thus, we strike the
three-year base term on count 2. The matter must be remanded for resentencing.
In count 1, Maciel was convicted of the attempted voluntary manslaughter of Jane.
The court declared count 1 the principal count and imposed an eight-year term on count
1, comprised of the middle term of three years (1/2 the middle term of 6 years) because
the crime was an attempted crime (§§ 664, subd. (a); 193, subd. (a) [voluntary
manslaughter is punishable by 3, 6 or 11 years]), plus one year for the weapon
enhancement, plus four years for the great bodily injury enhancement. On count 2,
48 defendant was convicted of the attempted voluntary manslaughter of Mary. The court
imposed a consecutive term of four years four months on count 2, comprised of the “full”
middle term of three years (1/2 of the middle term of 6 years), again because the crime
was an attempted crime, plus four months for weapon enhancement (1/3 of the 1-year
term) plus one year for the great bodily injury enhancement (1/3 of the 3-year term).
The court said that it was imposing the “full” three-year base term on count 2,
pursuant to section 1170.16, “because these are two separate victims and this is a case
involving manslaughter, albeit attempted manslaughter.” But, as the parties and we
agree, this was error. Section 1170.16 authorizes courts to impose a “full, separate, and
consecutive term” on a second or other subsequent conviction for voluntary
manslaughter, but the statute does not authorize courts to impose a “full, separate, and
consecutive term” on a conviction for attempted voluntary manslaughter.
When, as here, a defendant is convicted of two or more felonies and a consecutive
term of imprisonment is imposed under sections 669 and 1170, the defendant’s aggregate
term of imprisonment “shall be the sum of the principal term, the subordinate term, and
any additional term imposed for applicable enhancements . . . .” (§ 1170.1, subd. (a).)
The principal term is the “greatest term of imprisonment imposed by the court for any of
the crimes, including any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of one-third of the middle
term of imprisonment prescribed for each other felony conviction for which a consecutive
49 term of imprisonment is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.” (Ibid.)
Section 1170.16 sets forth an exception to section 1170.1, where a defendant has
multiple convictions for voluntary manslaughter. Section 1170.16 provides: “In lieu of
the term provided in section 1170.1, a full, separate, and consecutive term may be
imposed for each violation of subdivision (a) of Section 192, whether or not the offenses
were committed during a single transaction.” Section 192, subdivision (a), distinguishes
voluntary manslaughter from other types of manslaughter, but does not mention
attempted voluntary manslaughter.11
When a consecutive, subordinate term is to be imposed on a second conviction for
voluntary manslaughter (§ 192, subd. (a)), section 1170.16 authorizes the court to impose
“a full, separate, and consecutive term” on the second voluntary manslaughter conviction,
notwithstanding section 1170.1. The parties agree, however, that section 1170.16 did not
authorize the court to impose a “full, separate and consecutive” three-year base term on
count 2 because Maciel was not convicted of voluntary manslaughter in count 2. Rather,
he was convicted of attempted voluntary manslaughter in count 2.
Whether section 1170.16 applies to attempted voluntary manslaughter, as well as
to the completed crime of voluntary manslaughter, is a question of statutory construction.
11 Section 192 states, “[m]anslaughter is the unlawful killing of a human being without malice,” and manslaughter “is of three kinds.” Subdivision (a) of section 192 lists, as one type of manslaughter, “voluntary” manslaughter “upon a sudden quarrel or heat of passion.” Voluntary manslaughter is distinct from the other two kinds of manslaughter: involuntary manslaughter (§ 190, subd. (b)) and vehicular manslaughter (id., subd. (c)).
50 “In interpreting a statute, our primary goal is to determine and give effect to the
underlying purpose of the law. [Citation.] ‘Our first step is to scrutinize the actual words
of the statute, giving them a plain and commonsense meaning.’ [Citation]. ‘ “If the
words of the statute are clear, the court should not add to or alter them to accomplish a
purpose that does not appear on the face of the statute or from its legislative history.” ’
[Citation.] . . . [But] ‘ “the ‘plain meaning’ rule does not prohibit a court from
determining whether the literal meaning of a statute comports with its purpose . . . .” ’ ”
(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
By its terms, section 1170.16 does not apply to attempted voluntary manslaughter.
Additionally, the legislative history of section 1170.16 shows that the statute was only
intended to apply to the completed crime of voluntary manslaughter, not to attempted
voluntary manslaughter.12 Indeed, the legislative history shows that the Legislature was
concerned with authorizing courts to impose full, separate, and consecutive terms, rather
than reduced, subordinate terms, on a defendant’s second or other additional conviction
for voluntary manslaughter, given that the completed crime of voluntary manslaughter
involves an intentional killing. (Sen. Com. on Crim. Proc., Assem. Bill No. 1137 (1995-
12 Section 1170.16 was enacted in 1996 as part of Assembly Bill No. 1137 (1995- 1996 Reg. Sess.) (Stats. 1996, ch. 421, §1; Assembly Bill 1137). We grant Maciel’s request, filed on July 30, 2020, to take judicial notice of two legislative documents concerning the legislative history of section 1170.16: (1) Senate Committee on Criminal Procedure, Assembly Bill No. 1137 (1995-1996 Reg. Sess.), June 4, 1996; and (2) Appropriations Committee Fiscal Summary, Assembly Bill No. 1137 (1995-1996 Reg. Sess.), August 12, 1996. (Evid Code, §§ 452, subd. (c), 459, subd. (a).) Nothing in these documents, or in any of the other legislative materials preceding the enactment of Assembly Bill No. 1137, indicates that the Legislature intended section 1170.16 to apply to attempted voluntary manslaughter.
51 1996 Reg. Sess.), June 4, 1996, p. 5 [“Where a defendant intentionally kills multiple
persons, we demean the value of the second [or] third victim’s life by not allowing for the
imposition of [full] consecutive sentences.”].) The Legislature’s purpose in enacting
section 1170.16 does not apply to multiple convictions for attempted voluntary
manslaughter, and even if it did, the Legislature did not make the statute applicable to
attempted voluntary manslaughter.
Thus, we conclude that the full consecutive three-year base term on count 2 was
unauthorized under section 1170.16 and must be stricken, and we agree with the People
that the matter must be remanded for resentencing. (People v. Buycks, supra, 5 Cal.5th at
p. 893 [“We have held that when part of a sentence is stricken on review, on remand for
resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’ ”].)
We observe that, if the court does not exercise its sentencing discretion anew on
count 1, the principal count, or on any of the other counts, then the base term on count 2
will necessarily be one year, or one-third of one-half of the middle term of six years.
(§§ 1170.1; 193, subd. (a), 664, subd. (a).) In this scenario, the determinate portion of
Maciel’s sentence will be reduced by precisely two years, from 18 years four months to
16 years four months (reflecting a 1-year-base term on count 2).
D. Corrections to Abstract of Judgment and Sentencing Minute Order
At sentencing, the trial court imposed but struck a $10,000 restitution fine (Pen.
Code, § 1202.4, subd. (b)), $280 in criminal conviction fees (Gov. Code, § 70373) and
52 $210 in court operations assessments (Pen. Code, § 1465.8), on the ground that Maciel
did not have the ability to pay. (Dueñas, supra, 30 Cal.App.5th 1157.)
The parties agree that Maciel’s abstract of judgment on the indeterminate portion
of Maciel’s sentence has a clerical error in that it shows: (1) the court imposed but did
not strike the $10,000 restitution fine, and (2) the court “stayed” imposition of both the
criminal conviction fees and the court operations assessments. As the People also point
out, the minute order from the July 26, 2019 sentencing hearing erroneously shows that
the court “stayed” rather than struck its imposition of the $10,000 restitution fine, the
$210 criminal conviction fee, and the $280 in court operations assessments.
Courts have inherent authority to correct clerical errors in court records in order to
make the records correctly reflect the judgment. (People v. Mitchell (2001)
26 Cal.4th 181, 185.) We direct the superior court to fix the clerical errors in the
July 26, 2019 sentencing minute order and the indeterminate abstract of judgment, as set
forth in the disposition.
53 IV. DISPOSITION
The three-year subordinate base term imposed on Maciel’s attempted voluntary
manslaughter conviction in count 2 is stricken as unauthorized under section 1170.16,
and the matter is remanded for resentencing. On remand, the court is further directed to
prepare a supplemental sentencing minute order and a corrected abstract of judgment
(indeterminate), showing that the court previously struck rather than stayed its imposition
of the $10,000 restitution fine, the $280 in criminal conviction fees, and the $210 in court
operations assessments. Following resentencing, the court is further directed to forward
certified copies of Maciel’s new abstracts of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
SLOUGH J.
Related
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People v. Maciel CA4/2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-maciel-ca42-calctapp-2021.