Opinion
F075489
05-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS VILLEGAS, Defendant and Appellant.
Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Tia M. Coronado and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 1479239)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge. Meredith Fahn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Tia M. Coronado and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
INTRODUCTION
Appellant Jorge Luis Villegas had a confrontation with a group of seven strangers. It escalated. The incident ended when appellant fired his handgun multiple times, striking one of the group members in his leg. A jury convicted appellant of one count of attempted voluntary manslaughter (Pen. Code, §§ 664/192, subd. (a); count I). The jury found true appellant personally used a firearm (§ 12022.5, subd. (a)). The jury also found appellant guilty of misdemeanor evading a police officer (Veh. Code, § 2800.1, subd. (a); count V). For the attempted voluntary manslaughter, appellant received an upper prison term of five years six months. He also received an aggravated and consecutive 10 years for the firearm enhancement. For the misdemeanor evading, the court imposed a concurrent term of 180 days.
All future statutory references are to the Penal Code unless otherwise noted.
In finding appellant guilty of attempted voluntary manslaughter, the jury rejected the greater alleged offense of attempted premeditated murder (§§ 664/187, subd. (a)). In counts II through IV, the prosecution had alleged attempted premeditated murder (§§ 664/187, subd. (a); counts II-IV) involving three other members of the group involved in the altercation with appellant. The jury acquitted appellant of all charges involving those three other victims (§§ 664/187, subd. (a); 664/192, subd. (a)).
The upper term for voluntary manslaughter is 11 years. (§ 193, subd. (a).) Because this was an attempted crime, this sentence was required to be one-half that term (i.e., five years six months). (§ 664, subd. (a).) The trial court originally imposed a term of five years eight months. The Department of Corrections, however, notified the court of its sentencing error. The court issued an amended abstract of judgment reflecting the correct term.
Appellant contends the trial court improperly imposed the upper term. He further argues remand is required for the court to exercise its sentencing discretion for the firearm enhancement. He raises cumulative prejudice. We affirm.
BACKGROUND
Appellant does not challenge the sufficiency of the evidence. We provide a summary of the material trial evidence supporting his conviction.
In September 2014, appellant was involved in a violent confrontation with a group of seven people. The incident started at a gas station shortly before 12:00 a.m. Appellant had arrived at the gas station alone in his vehicle. The group was passing nearby on foot. Prior to the encounter, some members of the group had been drinking alcohol. Appellant spoke with some of them. The encounter quickly became hostile, and fighting words were exchanged.
The jury heard testimony regarding how and why this altercation started. We will not summarize those details, which are irrelevant to the issues raised on appeal.
Appellant exited his vehicle and he displayed a handgun. Some of the group members challenged appellant to put down his gun and fight. Appellant got back inside his vehicle. One of the group members, M.M., snuck over to appellant's driver side window and he began to punch appellant's face through the open window. M.M. tried to grab appellant's gun, but he was unsuccessful. Appellant drove away, causing M.M. to fall to the ground.
Nobody in the group had firearms.
At trial, M.M. said he had experience with guns. He testified appellant's gun was "a .45-caliber pistol."
Moments later, appellant made a U-turn and he drove back. The group members threw things, including rocks, at appellant's vehicle. Some of the group members continued to yell at appellant, challenging him to fight.
One group member recorded portions of the incident on her cell phone. The video was played for the jury. In People's exhibit 14, members of the group are heard screaming at appellant, calling him names, and aggressively harassing him. After appellant drives away the first time, he is seen returning to the gas station. He exits his vehicle and screams, "I will fucking kill you." He appears to fire two gunshots into the air. He returns to his vehicle and drives it aggressively through the gas station before exiting onto the street and leaving the second time.
After appellant drove away the second time, the group members started to leave the gas station on foot. A few minutes later, appellant returned to the area. He parked his vehicle on a street and he got out. Some of the males in the group walked towards him. Appellant pulled out his gun. He fired a shot into the air before firing in the direction of some of the group members. J.T., the victim in count I, was shot in his leg.
Law enforcement later recovered approximately four expended .45-caliber shell casings in the area of this shooting. The shell casings were located about seven or eight feet from each other. One group member, M.M., testified he heard appellant fire about eight times.
The bullet which struck J.T. passed through his left leg. He was transported to a hospital and provided medical attention. He needed to use crutches for a little over one month.
At about 12:18 a.m., a police officer was dispatched to the scene with a report of shots fired. The officer, who had been close by, arrived within seconds. The officer saw appellant's vehicle quickly drive away. The officer stayed to assist J.T., but he radioed a description of appellant's vehicle and its direction of travel. Another officer responded and followed appellant in a marked patrol car. The second officer's lights were flashing and the siren was activated. Appellant was speeding and he ran a stop sign. Appellant turned down a residential road that contained dirt and gravel. The officer slowed down and he lost sight of appellant's vehicle. A short time later, the officer saw appellant's vehicle parked in front of a residence. The officer saw a male near the house. The officer exited his patrol car, and he ordered the male to stop and show his hands. The male ran into the residence.
Law enforcement personnel surrounded the house. It was determined appellant lived in this residence. Later that day, that residence was searched, but appellant was not inside. About three days later, however, appellant voluntarily turned himself into authorities.
DISCUSSION
I. The Trial Court Did Not Abuse Its Sentencing Discretion.
In a series of overlapping arguments, appellant contends the trial court abused its discretion in imposing an upper term for the attempted voluntary manslaughter. He seeks a remand for resentencing.
A. The trial court's comments at sentencing.
Prior to imposing sentence, the trial court heard relatively lengthy oral arguments from counsel regarding the appropriate sentence. After those arguments concluded, the court noted the jury found appellant guilty of "a very serious crime," and "the personal use of a gun." The court recalled that "two altercations" had occurred on the night in question. The first incident was at the gas station. Both appellant and the group members exchanged fighting words, and both sides exhibited aggressive behavior.
Appellant asserts the prosecutor (and the probation report) overstated factors in aggravation. For instance, the prosecutor's sentencing memorandum claimed the crime involved multiple victims but the jury found appellant guilty only in one count. The prosecutor said this crime showed planning and sophistication, which appellant argues is contrary to the jury's reliance on imperfect self-defense or heat of passion. Appellant contends the prosecutor took an "unreasonable posture" when arguing for the maximum prison term. We will not further summarize the prosecutor's arguments or comment on them. Instead, we focus on how the court exercised its sentencing discretion.
The court made two comments which are central to some of appellant's arguments. We highlight the disputed language. The court stated, "The cell phone evidence also, I think, supports the claim that [appellant] did try to come back and run one or more of [the group members] over with his vehicle. So that was altogether an ugly episode." (Italics added.) The court believed nobody had exhibited good conduct at the gas station. The court believed the group members had "acted like thugs." The court, however, also believed appellant had "swerved his car towards those people ...." (Italics added.)
At trial, some of the group members testified that, at the gas station, it seemed like appellant had tried to run some of them over. During closing argument, the prosecutor contended appellant demonstrated his intent to kill in multiple ways, including when he tried to run over some of the group members with his vehicle. With CALCRIM No. 3502, the jurors were instructed they must not find appellant guilty of attempted murder or attempted manslaughter unless they all agreed the prosecution proved appellant committed that offense by attempting to shoot at the alleged victim. During arguments at sentencing, the prosecutor asserted appellant had tried to run over some of the group members with his vehicle.
The court said it was unfortunate the incident did not end at the gas station. However, after leaving, appellant drove back. "And it was in the driving back and parking his car and getting out and saying more comments to the people and pointing his gun and shooting at him—at them, that's where the serious criminal misconduct occurred. Without that, nobody would be here. Without that, there probably wouldn't have been much of anything. There probably wouldn't have even—police wouldn't have been called, there would have been nothing that even happened. Unless [appellant] had driven home and decided he would call the police on the people who had punched him in his car. He could have done that. But he didn't, he drove back with his gun to shoot them."
The court noted appellant had been the victim of assault. "He could have taken himself or driven to the police station, could have gone home and called 9-1-1, he could have stayed around to say something, but he didn't." The court believed it was fortunate J.T. (the victim in count I) did not die from his gunshot wound, and it was fortunate nobody else was shot. The court reiterated it believed two separate interactions had occurred. Appellant drove away from the gas station. He did not have to come back with a gun and shoot at the group members. The court, however, emphasized the group members had been "quite aggressive and threatening" to appellant at the gas station.
The court reviewed factors in aggravation. Regarding the crime, appellant had been armed and he had used a weapon. The court believed this crime involved "a great deal of violence and viciousness" because appellant shot at more than one person. According to the court, J.T. had not been "a nice person" but he was on foot when appellant fired at him, and J.T. did not have any protection. The court stated J.T. had been particularly vulnerable when he was shot. However, the court believed this crime did not demonstrate planning, sophistication or professionalism. Instead, this was a "heat of passion."
Turning to factors in aggravation related to appellant, the court noted appellant had engaged in violent conduct that indicated a serious danger to society. This shooting had occurred in a public place. The court, however, disagreed with other factors listed in the probation report. The court did not believe appellant's prior criminal history or his prior performance on probation established a factor in aggravation.
Appellant had a 2008 misdemeanor violation of carrying a concealed firearm (former § 12025, subd. (a)). He received 36 months' probation. In 2010, he had a misdemeanor violation of driving under the influence (Veh. Code, § 23152, subd. (b)). In part, he received 36 months' probation. In January 2012, he violated probation and he received five days in jail.
The court reviewed factors in mitigation. The court believed J.T. had been aggressive at the gas station, but he was not acting aggressively when he was shot. The court noted it was possible "the crime was committed because of an unusual circumstance such as great provocation that is unlikely to recur." The court, however, stated "it was an exchange of words at a gas station that led to the pulling of the gun in a fight. Maybe that's the kind of thing that otherwise counts as road rage and is not so extreme and unusual that it would fit within this subsection [of the rule]." The court did not believe any other factors in mitigation applied.
The court said it had considered the factors in aggravation and mitigation. Based on all of the evidence, the court determined an aggravated term was warranted.
B. Standard of review.
We review a trial court's sentencing determination for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Such discretion "must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (Ibid.) In applying this standard, it is not our role to substitute our reasons for those omitted or misapplied by the trial court, nor to reweigh valid factors bearing on the decision below. (People v. Scott (1994) 9 Cal.4th 331, 355.)
C. Analysis.
Appellant argues the trial court erred when it twice stated appellant had tried to hit the group members with his vehicle. He contends the jury rejected all charges of premeditated murder so it must have rejected these alleged facts. As such, he asserts the court violated his constitutional rights because it imposed an enhanced sentence based on facts which the jury did not find true beyond a reasonable doubt. Appellant also claims the court improperly rejected mitigating circumstances and it failed to account for other factors in mitigation. He points to his partially excusable criminal conduct in this matter, his insignificant prior criminal record, and his satisfactory prior performance on probation.
To support this argument, appellant cites Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). These opinions generally hold that any fact increasing a criminal sentence (other than a fact of a prior conviction) must be determined by a jury (and not a judge) and established beyond a reasonable doubt. (Cunningham, supra, at p. 281; Apprendi, supra, at p. 490.)
During oral arguments prior to sentencing, defense counsel contended the jury necessarily determined appellant had acted either in imperfect self-defense or under a heat of passion. Defense counsel asserted the group members had attacked appellant and they had acted like a "gang of thugs."
The parties dispute the applicability of People v. Towne (2008) 44 Cal.4th 63 (Towne). In Towne, the jury convicted the defendant of joyriding but acquitted him of kidnapping and robbery. (Id. at p. 70.) The court sentenced him to the upper term, based on its finding the victim had feared for his life. The court also focused on the defendant's lengthy criminal history. (Id. at p. 73.) On appeal, the defendant argued the court's factual finding was in direct conflict with the jury's decision to acquit him of all charges involving the element of force or fear. (Id. at p. 83.) Our high court disagreed, holding a trial court has "broad discretion to consider relevant evidence at sentencing." (Id. at p. 85.) "Nothing in the applicable statute or rules suggests that a trial court must ignore evidence related to the offense of which the defendant was convicted, merely because that evidence did not convince a jury that the defendant was guilty beyond a reasonable doubt of related offenses." (Id. at pp. 85-86.) According to Towne, the Sixth Amendment right to a jury trial is not offended when a judge considers conduct underlying acquitted charges. (Id. at p. 86.) Instead, such a consideration is part of the court's sentencing discretion. (Id. at pp. 86-87, fn. 9.)
Appellant argues we should not follow Towne. According to appellant, Towne is distinguishable. In the alternative, appellant contends Towne should be overruled to the extent it allows judicial factfinding that conflicts with jury verdicts.
In Towne, the high court determined the defendant was eligible for an upper term based on his criminal history. (Towne, supra, 44 Cal.4th at p. 76.) In contrast, appellant notes he "has no significant criminal history."
Appellant notes some of the opinions which Towne relied upon have been subsequently overruled or disapproved. In addition to the opinions cited in his opening brief, appellant submitted letter briefs asking us to review United States v. Haymond (2019) ___ U.S. ___ and an opinion from the Michigan Supreme Court, People v. Beck (2019) 504 Mich. 605. According to appellant, these opinions call for overruling Towne.
We decline to overrule Towne. It remains controlling authority and we are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In light of Towne, the trial court did not err when it twice commented appellant tried to run over members of the group. In any event, we need not address appellant's concerns regarding the continued validity of Towne. A careful reading of the sentencing record establishes the court did not base the aggravated sentence on facts which the jury did not find true. Towne is inapplicable.
At sentencing, the court focused on appellant's decision to continue the altercation. The court noted the "serious criminal misconduct" in this matter occurred because appellant returned and used his gun. "Without that, nobody would be here. Without that, there probably wouldn't have been much of anything." The court repeatedly stated appellant could have avoided these charges. He did not have to come back with a gun and shoot at the group members.
When reviewing the factors in aggravation, the court did not comment on appellant's alleged attempt to run over members of the group. Instead, the court determined appellant had been armed and he used a weapon. The court believed this crime involved "a great deal of violence and viciousness" because appellant shot at more than one person. Although it did not condone J.T.'s actions, the court noted J.T. had been particularly vulnerable when he was shot. Finally, the court found appellant posed a serious danger to society because he had fired shots in a public place. In short, the sentencing record does not support appellant's argument the upper term imposed in this matter was based on facts which the jury did not find true.
A trial court is granted statutory discretion to determine which sentence "best serves the interests of justice." (§ 1170, subd. (b).) It may impose an upper, middle or lower term based on stated reasons. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) The court's articulated reasons must be supported by a preponderance of the evidence in the record and they must reasonably relate to the particular sentencing determination. (People v. Scott, supra, 9 Cal.4th at pp. 349-350.) Only a single factor in aggravation is necessary to support imposition of an upper term. (People v. Black (2007) 41 Cal.4th 799, 813.)
We agree with the court's articulated factors in aggravation. Appellant fired at least four shots on a public street, striking J.T. in his leg. Appellant's crime involved great violence. Although we do not condone J.T.'s actions, he was particularly vulnerable when appellant fired at him. In discharging multiple shots in public, appellant represented a serious danger to society. As such, more than one factor in aggravation existed. (See Cal. Rules of Court, rule 4.421(a)(1), (2), (3) & (b)(1).) Based on the multiple factors in aggravation, appellant was eligible for an upper term sentence. We cannot state the court abused its sentencing discretion.
For the same reasons, we reject appellant's assertion his conviction for the lesser included offense of attempted voluntary manslaughter indicates he was not deserving of an aggravated sentence. Although the jury was free to reject the prosecution's theory of premeditated attempted murder, the sentencing court was tasked to determine which sentence "best serves the interests of justice." (§ 1170, subd. (b).)
Appellant relies on People v. Boyce (2014) 59 Cal.4th 672 (Boyce). In Boyce, the defendant was sentenced to death, and also sentenced to a determinate term that was stayed pending execution of the death judgment. (Id. at p. 725.) Although the defendant had an extensive criminal history, the trial court did not find an aggravating circumstance based on prior convictions. (Id. at p. 728.) Instead, the upper term was based on the court's determination the victim had been particularly vulnerable. (Id. at pp. 725, 728.) The jury, however, did not find this fact and the defendant did not admit it. (Id. at p. 728.) Our Supreme Court determined the trial court had erred when it imposed an upper term for robbery. The trial evidence regarding the victim's vulnerability had been in conflict. (Id. at p. 729.) As such, the high court could not conclude with confidence how the jurors would have resolved this question had it been presented to them. (Ibid.) Thus, the Boyce court could not declare that the failure to submit this aggravating circumstance to the jury was harmless beyond a reasonable doubt. (Ibid.)
Boyce does not assist appellant. Unlike in Boyce, the trial court in this matter did not rely on a single factor in aggravation to impose the upper term. Moreover, the factors in aggravation which the court relied upon were not based on conflicting trial evidence. Contrary to Boyce, the trial court based appellant's upper term on facts which the jury had implicitly found true. Boyce is distinguishable and it does not dictate reversal.
Finally, we reject appellant's contention resentencing is required because the court failed to account for factors in mitigation. We presume the sentencing judge considered the relevant factors. (Cal. Rules of Court, rule 4.409.) A sentencing court is not required to weigh aggravating and mitigating circumstances on the record, and it need not cite " 'facts' " that support its decision. (People v. Sandoval, supra, 41 Cal.4th at pp. 846-847.) A court may minimize or even completely disregard mitigating factors without stating its reasons. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.)
Here, the court articulated possible factors in mitigation. It is clear the court considered and weighed their applicability. In deciding on an aggravated sentence, it is apparent the court determined appellant's criminal liability should not be reduced. We will not reweigh the sentencing factors on appeal. (People v. Scott, supra, 9 Cal.4th at p. 355.)
Based on this record, the trial court's sentencing decision was not arbitrary and capricious. The court based its discretion upon a detailed review of appellant's offense. The court's reasons are supported by a preponderance of the evidence. The court's justifications are reasonably related to its particular sentencing determination. As such, an abuse of sentencing discretion is not present. (See People v. Sandoval, supra, 41 Cal.4th at p. 847; People v. Scott, supra, 9 Cal.4th at pp. 349-350.) Accordingly, appellant's arguments are without merit and these claims fail.
Because the trial court did not abuse its discretion, we will not address appellant's arguments regarding alleged prejudice. In any event, we would conclude any presumed error by the trial court was harmless beyond a reasonable doubt. (See People v. Sandoval, supra, 41 Cal.4th at p. 839.) Moreover, any additional fact finding engaged in by the trial court in selecting the appropriate sentence did not violate appellant's constitutional right to a jury trial. (See People v. Black, supra, 41 Cal.4th at p. 812.)
II. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing Discretion Under Senate Bill No. 620.
At the time of sentencing in this matter, the trial court was required to impose an additional prison term for the firearm enhancement found true under section 12022.5. (Former § 12022.5, subd. (a).) On October 11, 2017, however, the Governor approved Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), which amended section 12022.5. A trial court now has discretion to strike or dismiss this firearm enhancement. (§ 12022.5, subd. (c).)
The parties agree, as do we, this amendment applies retroactively to appellant because his case is not yet final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) The parties, however, disagree whether remand is appropriate. Respondent asserts a remand would serve no purpose. According to respondent, the court would not have struck the firearm enhancement even if it had such authority. We agree.
Remand is necessary when the record shows a trial court proceeds with sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court " ' "would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' " (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) Certain factors may be germane in assessing whether a trial court is likely to exercise its sentencing discretion in the defendant's favor. Those factors are: (1) the egregious nature of the defendant's crimes; (2) the defendant's recidivism; and (3) the fact that consecutive sentences were imposed. (McDaniels, supra, 22 Cal.App.5th at p. 427.) However, these factors alone cannot establish what the court's discretionary decision would have been. (Ibid.) If the court imposes the maximum sentence permitted, a remand would be an idle act because the record contains a clear indication the court would not exercise its discretion in the defendant's favor. (Ibid.)
In the present matter, section 12022.5 gave the trial court discretion to impose an additional and consecutive term of imprisonment of three, four or 10 years for the firearm enhancement. (§ 12022.5, subd. (a).) The court chose to impose the maximum possible firearm enhancement. The court also imposed the upper term for appellant's conviction of attempted voluntary manslaughter. As noted previously, the court determined appellant fired his gun multiple times in public. His crime was very violent and vicious, and it involved a serious danger to society.
This record reveals a clear indication the trial court would not have struck or dismissed appellant's firearm enhancement even if it had such discretion. To the contrary the court imposed the maximum possible firearm enhancement and it imposed the maximum possible prison term. The court commented on the egregious nature of appellant's actions. Based on this sentencing record, remand would be an idle act and it is not required. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [denying remand after sentencing court indicated it would not have exercised its discretion to strike a Three Strikes prior even if it had believed it could have done so]; McDaniels, supra, 22 Cal.App.5th at p. 427.) Accordingly, we deny appellant's request for the court to exercise its discretion under Senate Bill 620.
III. Remand Is Not Warranted For Alleged Cumulative Prejudice.
Appellant claims reversal is required based on alleged cumulative prejudice. Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The issue is whether the defendant received a fair trial. (Ibid.)
Here, appellant's claim of cumulative prejudice is without merit because we have rejected all individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057.) Appellant received a fair trial. (See People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Consequently, a remand is not warranted.
DISPOSITION
The judgment is affirmed.