P. v. Bizzell 3/1/05 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A104615

Case Date: 06/09/2005

Preview:Filed 3/1/05 P. v. Bizzell CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. HOWARD BIZZELL, Defendant and Appellant. I. (Alameda County Super. Ct. No. H33800) A104615

INTRODUCTION

A jury found Howard Bizzell guilty of numerous offenses, including an attempted murder, committed during a two-day period in January 2003. He was sentenced to a total prison term of twelve years and six months in state prison. On appeal, Bizzell contends the judgment must be reversed because he was denied the effective assistance of counsel. He also contends that mis-instruction of the jury requires reversal of two of his convictions. Finally, Bizzell argues the lower court made numerous sentencing errors. We affirm the judgment but remand this case to the trial court to correct sentencing errors that the court made. II. STATEMENT OF FACTS On January 26, 2003,1 Bizzell's former girlfriend, Betty Kokal, moved into a residential rehabilitation recovery home on Smalley Avenue in Hayward (the Smalley

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All date references in this section are to the 2003 calendar year. 1

house). Before she moved to the Smalley house, Kokal had an "off and on" dating relationship with Bizzell, which she ended because she could not "take" Bizzell's attitude and behavior anymore. Kokal did not tell Bizzell that she had moved to the Smalley house because she did not want him to know where she was living. Alex Winn was the executive director of the program at the Smalley house, which housed both men and women. At around 1:30 p.m. on January 26, Winn arrived at the Smalley house and found Bizzell standing in the driveway. Bizzell said he heard a car was for sale, pointed out Kokal's car, which was parked in the driveway, and asked to buy it. Winn said the car was not for sale. Bizzell responded that he knew the car belonged to "that bitch Betty" and that he used to date her. Bizzell was angry and emotional; he cursed Kokal and used threatening language. Winn asked Bizzell to leave. After arguing for a few minutes, Bizzell left. At around 8:00 p.m. on January 26, Winn and Kokal arrived at the Smalley house together. As Kokal was getting out of the car, Bizzell rushed toward her, grabbed her, called her a "bitch," and said he would kill her if she did not leave the Smalley house. Bizzell "slammed" Kokal against the car causing the car to rock. He repeatedly cursed at her and called her names. Kokal thought Bizzell smelled of alcohol. Winn told Bizzell to let Kokal go and to leave or he would call the police. Bizzell "came at" Winn as if he was going to punch him. After another resident came out to help, Bizzell agreed to leave. But, before he left, he told Kokal that he was not done with her and that he would be back. At around 11:30 p.m. on January 26, Winn was in his office in the Smalley house. When the automatic lights went on in the driveway, Winn noticed Bizzell crouching between the cars. Winn watched for a few minutes, and when the lights went off, Winn thought Bizzell had left. However, around 20 minutes later, the lights went on again and Winn saw Bizzell crawling between the cars in the driveway. Winn believed Bizzell posed a safety risk to the residents and called the police. The police took Bizzell to jail

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for public drunkenness. Kokal was frightened by news that Bizzell had come back to the Smalley house. On January 27, at around 11:30 a.m., Winn was outside talking on his cell phone when Bizzell walked down the sidewalk in front of the Smalley house. When Winn asked Bizzell what he was doing, Bizzell made a fist, ran toward Winn and said "I'm gonna' break you in half." Bizzell's tone was aggressive, very threatening and very fierce. Winn told the person he was talking to on the cell phone to call the police, stepped back, stayed calm and tried not to look frightened. When the police called Winn's cell phone and Winn began to give a description, Bizzell ran away. Kokal was frightened, nervous and traumatized by the fact that Bizzell kept returning to the Smalley house. At around 8:00 p.m. on January 27, Bizzell knocked on the front door at the Smalley house. Winn tried to deadbolt the door but Bizzell pushed his way inside. Bizzell was enraged. He told Winn that he was coming to get Kokal and that she wasn't going to stay at the house any longer. He pushed Winn against a cabinet and then threw him over a desk. Winn saw that Bizzell was holding a knife. Bizzell told Kokal, "I'm gonna kill you bitch." He grabbed her and said, "Bitch, you're coming up out of here." Bizzell tried to drag her out of the house by her neck as he held a knife to her throat. He was choking Kokal who could barely breathe, was extremely frightened and thought Bizzell would kill her. After Bizzell took two or three steps toward the door, with Kokal still in a choke hold, Winn tried to pull Bizzell off. Bizzell swung around, threw Winn against a cabinet and grabbed Kokal again. He made a motion as if he was going to bring the knife across Kokal's throat. Winn thought Bizzell was going to kill her. The two men struggled and exchanged punches. Bizzell tried to stab Winn at least three times -- in the heart, neck and eye. Winn was cut in the hand and on the side of his face. Winn thought Bizzell was trying to kill him and screamed for help. Other residents of the Smalley house pulled Bizzell off Winn, took the knife and threw Bizzell onto a couch. Winn called 911.

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Bizzell testified at trial that Kokal was still his girlfriend at the time of the incident. He stated that Kokal told him where she moved to but then claimed that he knew how to find Kokal because he had a "vision" of her moving to the Smalley house. Bizzell testified that he did not push, touch or threaten Kokal on January 26. He denied he was angry with Kokal but admitted he drank that day and that he was upset that Kokal was not "woman enough to [tell him] what was going on." Bizzell testified that he went to the Smalley house on the morning of January 27 to get his bicycle which he had left there the night before. He claimed he did not threaten Winn but rather apologized to him and explained that he loved Kokal and did not want her to live with "a bunch of drug addicts." Bizzell testified that he went to the Smalley house on the evening of January 27 to talk to Kokal without any intention of removing her from the house. He claimed he did not force his way into the house; Winn invited him in although he said Bizzell was not supposed to be there. Bizzell testified that he was concerned one of the males in the house might try to take advantage of Kokal, who suffered from a learning disability. He told Kokal it was "no good for her to be there with a bunch of drug addicts," and that she "didn't know what she was getting herself into in that house." He asked Kokal to go outside to talk. When Kokal took a few steps toward the door, Winn told her to go back. Bizzell testified that he never threatened to kill anyone and did not push, hit or try to stab Winn on January 27. He denied putting a knife to Kokal's throat, calling her a bitch, threatening her or having any intent to harm her. Bizzell testified that he was attacked by Winn and other residents of the Smalley house. He pulled out his knife to protect himself. The residents took the knife from him and Winn hit him in the head and knocked him unconscious. Bizzell testified that Winn and another resident threatened to kill him.

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A jury found Bizzell guilty of the following charges: Count one: attempted murder of Winn (Pen. Code,

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