Opinion
A148176
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. THOMAS COCA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 223723)
I.
INTRODUCTION
Appellant Thomas Coca was convicted, after a jury trial, of stalking, assault causing great bodily injury, petty theft, witness dissuasion, and brandishing a knife related to an attack on his former friend, J.R. Coca raises challenges to the sufficiency of the evidence for his petty theft conviction, claiming the prosecution failed to prove he had the intent to permanently deprive J.R. of her phone. He also challenges the sufficiency of the evidence that he caused great bodily injury. Next, Coca argues the court incorrectly believed it lacked discretion to dismiss a prior conviction leading to his third strike sentence. We affirm Coca's convictions but remand for resentencing to allow the court to properly exercise its discretion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The San Francisco County District Attorney charged Coca with seven counts arising out of his assault of J.R.: (1) stalking (Pen. Code, § 646.9, subd. (a)); (2) assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)); (3) second degree robbery (§ 211); (4) dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)); (5) & (6) two counts of exhibiting a deadly weapon (§ 417, subd. (a)(1)); and (7) resisting, obstructing, or delaying a peace officer or emergency technician (§ 148, subd. (a)(1)). The second amended information also alleged Coca had sustained seven prior serious or violent felony convictions (§§ 667, subds. (a)(1), (d) & (e), 1170.12, subds. (b) & (c)).
All further references are to Penal Code unless otherwise identified.
The jury convicted Coca of stalking, assault with force likely to cause great bodily injury, dissuading a witness, and exhibiting a deadly weapon. The jury found him not guilty of obstructing or delaying a peace officer and second degree robbery, but found him guilty of the lesser included offense of petty theft. The jury found true five of Coca's prior convictions.
In December 2015, the court sentenced Coca to 35 years to life in prison. Coca moved to recall his sentence and in July 2016, the court resentenced him, striking one prior strike from counts one and two, but again imposing a sentence of 35 years to life.
B. Factual Background
1. Testimony at Trial
J.R. met Coca while riding on the train home from work in the summer of 2014. Coca introduced himself as Tom Sole. J.R. saw him intermittently over the summer on the train. Beginning in October, they began to see each other more frequently and started going out for drinks or food together. They exchanged phone numbers and began texting each other. By mid-November, they saw each other nearly every day. He would often walk her home but she never invited him into her house. She never told him where she worked. They would occasionally hold hands, hug, or he would give her a quick goodnight kiss, but the relationship was never physical. In late November, J.R. began to feel uneasy around Coca and was uncomfortable with some of his comments. In mid-December, he gave her a cashmere scarf as a gift and said, "Don't worry, I won't choke you with it." She was not comfortable with him giving her gifts and his comment scared her.
On December 16, 2014, J.R. made plans to meet Coca, as she often did, on the train. Coca appeared angry and was upset with her for not returning his texts. She told him that she preferred to walk home alone and Coca responded by asking if she did not want to see him anymore. She told him several times that she wanted to walk by herself, but he followed her and kept demanding that she talk to him. She finally yelled at him and asked if she had to call the police. She was afraid to walk across the overpass to get to her house with him following her. She went into a bar and hoped he would go away. He followed her into the bar and shouted at her. When she left the bar, he continued to follow her so she went into a store and told the clerk that a man was following her. An older couple with a dog volunteered to walk her home.
Later that night, J.R. texted Coca that he scared her and she did not want him to contact her anymore. On December 17, he called her 31 times. On December 17 or 18, 2014, he called and told her he was going to jump off the overpass near her home and commit suicide.
He continued to call and text her repeatedly day after day. In some of the communications he apologized or he told her he had money and could help her, and in others he berated her calling her a "whore," a "witch," and a "horrible person." He continued this pattern of calls and texts from December 16, 2014, through February 10, 2015. He filled up the voice mailbox on her phone. He left her a voicemail that said: "If I was a hateful person, you would be in the hospital for a really long time." He also left a voicemail that stated he knew her by her red shoes and "that's how they track deer back home and kill them."
She began hitting the button to answer and immediately hanging up so he could not leave a voicemail. Even though she never told him the name or location of her workplace, Coca came to her workplace three times. He also stood at the overpass where she walked home. She began using alternate routes to get home from work. On December 25, 2014, she filed a report at the police station about Coca's conduct.
On February 10, 2015, as she was heading home, she saw Coca coming toward her. She moved to walk down the middle of the street with her phone out to call 911. Coca knocked her over, grabbed her, and dragged her from the middle of the street to the curb by the gutter. She did not know if the force of his punch knocked her over, or if she fell backwards on her own. He dragged her by her right shoulder, which scrapped her hand and body across the pavement. He punched her in the face twice: once on the bridge of her nose, breaking her glasses and once on the side of her face. When he attacked her, Coca said "You're coming with me, be quiet." When people approached, Coca left the scene quickly. When J.R. got up out of the gutter she was aware she did not have her phone, she asked where her phone was and said she needed her phone.
Heather was riding her bike near Hearst Street and Baden Street at the time of the incident and heard a "brutal scream" and cars honking their horns. She saw a woman in the fetal position on the road and a man was hitting her and kicking her. The man appeared to be attacking the woman, so Heather called 911.
To protect their privacy, we will refer to the witnesses by their first names only.
Riley, who lived near the corner where the attack happened, heard a woman screaming and went outside to investigate. He also heard someone honking a car horn. He saw Coca standing over J.R. who was screaming and asking for help. His neighbor, Patty, was standing near J.R. attempting to shield her. Riley yelled at Coca and Coca started walking away. Riley followed him so he would not get away. Coca turned around and pulled a knife from his jacket pocket then turned and continued walking away. Riley continued to follow him and another man approached Riley and asked if he should call 911. Coca pulled the knife a second time and slashed it across the air. As a police car approached, Coca started running and he threw the knife into the bushes.
San Francisco Police Department officers chased Coca and when they caught up to him, they ordered him to lie on the ground. When Coca stood up after being arrested, officers saw a cellular phone underneath him. Coca stated that "all he wanted to do was talk to her, she was acting crazy and that is why he took her cell phone, so that she wouldn't call . . . the police." Officers later determined it was J.R.'s cell phone. When he was arrested, Coca had a roll of duct tape and a condom on him. Officers found the discarded knife in a planter box.
From the attack, J.R. had a bruise on her left eyebrow and redness on the bridge of her nose. She had an ongoing ache in her nose where she was hit and her nose remained sore for weeks. She also had an abrasion on her hand. She had a sore shoulder and bruises on her hip from being dragged.
III.
DISCUSSION
A. Sufficiency of the Evidence
To evaluate a claim of insufficient evidence, " 'we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
1. Assault with Force Likely to Cause Great Bodily Injury
Coca argues that there was insufficient evidence he used force likely to cause great bodily injury in his attack of J.R. He contends he "did not use much force" because J.R. only had bruises after the assault. If he had used significant force, "his blow" to her face would have resulted in facial fractures. He further contends she did not suffer any permanent injuries or scarring.
It is well established that "the use of hands or fists alone may support a conviction of assault 'by means of force likely to produce great bodily injury . . . . [Citations.]' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) A victim does not have to suffer permanent injury or scarring. "An examination of California case law reveals that some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.' [Citations.]" (People v. Washington (2012) 210 Cal.App.4th 1042, 1047.)
The jury concluded from J.R.'s testimony that she suffered great bodily injury. " ' "If there is sufficient evidence to sustain the jury's finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." ' [Citations.]" (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar).) " 'A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Clearly, it is the trier of fact that must in most situations make the determination.' " (Id. at p. 752, citing People. v. Jaramillo (1979) 98 Cal.App.3d 830, 836.)
In Escobar, the victim was dragged, pulled by her hair, and thrown onto the cement ground. (Escobar, supra, 3 Cal.4th at p. 744.) The defendant struck the victim's head against the ground, put his hand over her mouth, and then raped her. (Ibid.) She suffered bruises and abrasions on her thighs, knees, and elbows. (Ibid.) She also had vaginal pain that impeded her ability to walk for over a week. (Ibid.) Our Supreme Court held that this evidence supported the jury's finding of great bodily injury. (Id. at p. 752.) The court cited numerous decisions finding great bodily injury with a degree and severity similar to the victim. (Ibid., citing People v. Sanchez (1982) 131 Cal.App.3d 718 [multiple abrasions and lacerations to the victim's back and bruising of the eye and cheek found to be great bodily injury]; People v. Brown (1985) 174 Cal.App.3d 762 [one-inch long laceration of the victim's vagina supports finding of great bodily injury]; People v. Corona (1989) 213 Cal.App.3d 589 [swollen jaw, bruises to head and neck, and sore ribs support finding of great bodily injury].)
Here, the evidence showed that the force of the attack knocked J.R. over, then Coca grabbed her and dragged her from the middle of the street to the curb by the gutter. He dragged her by her right shoulder, causing her hand and body to be scraped across the pavement. He punched her in the face twice: once on the bridge of her nose, breaking her glasses, and once on the side of her face. Coca hit her with enough force to break her glasses and to cause bruising. Heather heard a "brutal scream" and saw J.R. in the fetal position on the road with Coca hitting her and kicking her.
J.R. testified she had a bruise on her left eyebrow and redness on the bridge of her nose. She had an ongoing ache in her nose where she was hit and it remained sore for weeks. She also had a sore shoulder and bruises on her hip from being dragged and an abrasion on her hand.
Even if a jury could have found the evidence did not "quite meet the description" of a substantial injury, the jury here found J.R. suffered great bodily injury. We accept the jury's finding and conclude there was sufficient evidence to support it. (Escobar, supra, 3 Cal.4th at p. 750; People v. Jaramillo, supra, 98 Cal.App.3d at p. 836.)
2. Petty Theft
Coca argues that there was insufficient evidence to support his petty theft conviction because the prosecution failed to prove he had the intent to steal J.R.'s cell phone. Specifically, Coca argues there was no evidence he sought to permanently deprive J.R. of her phone so the prosecution had to demonstrate his intent to temporarily deprive her of the phone for a sufficient period to take away its value.
Under California law, theft requires the intent to permanently deprive another of property. (People v. Avery (2002) 27 Cal.4th 49, 52.) However, the intent to take property for an extended period so as "to deprive the owner of a major portion of its value or enjoyment" satisfies the intent requirement. (Id. at p. 55.)
In People v. Aguilera (2016) 244 Cal.App.4th 489 (Aguilera), in the midst of an assault, the defendant took his wife's cell phone. (Id. at pp. 493-494.) The defendant was prosecuted for robbery and the court held that a spouse could be convicted for the forcible taking of community property from the other spouse. (Id. at p. 501.) The court addressed whether the evidence was sufficient to support the conviction. The court stated: "The evidence showed that [the] defendant took the [wife's] phone to prevent [her] from calling the police in the midst of his violent assault on her. That evidence was certainly sufficient to prove that the defendant took the phone with the intent to deprive [wife] of it temporarily, but for an unreasonable period of time so as to deprive her of a major portion of its value or enjoyment." (Id. at pp. 501-502.) The court agreed with the prosecutor's argument that "calling 911 for help during a violent assault is probably 'the most important call you could make,' and the defendant's taking the phone from [his wife] under those circumstances undoubtedly deprived her of a major portion of the value or enjoyment of the phone." (Id. at p. 502.)
Coca recognizes that Aguilera addresses the issue raised here but argues it was wrongly decided and merely dicta. We disagree. The Aguilera court's analysis applies here. Like the defendant in Aguilera, Coca took J.R.'s phone to prevent her from calling the police. J.R. had her phone in her hand to call 911. He deprived her of the use of her phone during the assault for "the most important call [she] could make," thus, depriving her of the value of her phone. (Aguilera, supra, 244 Cal.App.4th at p. 502.) Coca admitted to the arresting officer that he "took her cell phone, so that she wouldn't call . . . the police." This satisfies the intent requirement for petty theft.
A. Dismissal of a Prior Strike Conviction for Count Four
1. Sentencing Background
Prior to sentencing, Coca filed a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike his prior convictions. The court held a hearing on December 29, 2015. Coca's counsel argued he had been the victim of sexual abuse as a child and teenager. He had no felony arrests from 2004 to 2015. Coca was 70 years old. Respondent argued there was no basis to strike Coca's prior convictions and he had a lengthy history of sexual and violent offenses.
The jury found true the following prior convictions from an incident on September 3, 1971: (1) rape by use of drugs in violation of section 261.3; (2) forcible oral copulation in violation of section 288, subdivision (a) and; (3) kidnapping in violation of section 207. The jury also found two prior convictions from a September 21, 1971 incident: (4) robbery in violation of section 211; and (5) kidnapping in violation of section 207. The court found that all five offenses qualified as strikes under the three strikes law. Coca also had prior convictions for kidnapping and sexual assault in Arizona that were not found to be strikes because of limited information about the convictions. The prosecution presented evidence that Coca accosted a woman in the parking lot of night club and tried to force her into a car. When she resisted, he hit her, knocking her to the ground, and then choked her. When he got her into the car, he sexually assaulted her. He was convicted in 1980 and imprisoned in Arizona until 2004.
The court denied the motion to strike the priors. As to counsel's argument that Coca's relatively advancing age was a mitigating factor, the court observed that Coca was the same age and in the same physical condition as when he committed the offenses involved in this case. "The Court finds that the evidence does not show that the defendant is outside the purpose and spirit of the three strikes law and the motion will not be granted as to any of the strikes." This crime was similar to his past crimes suggesting he has not learned from his prior experiences.
The court found the crime involved "the prospect of great violence, the threat of bodily harm and disclosed a high degree of callousness . . . ." For count one, stalking in violation of section 646.9, subdivision (a), the court sentenced him to a term three years. For count two, assault in violation of section 245, subdivision (a)(4), the court sentenced him to the midterm of three years. For count four, dissuading a witness in violation of section 136.1, subdivision (b)(1), the court found the three strikes law applied and sentenced him to 25 years to life but added an additional 10-year term under section 667, subdivision (a)(1) for the two separately tried priors, for a total term of 35 years to life. For counts five and six, exhibiting a deadly weapon in violation of 417, subdivision (a)(1), the court sentenced him to 90 days in jail but found time served. Counts one and two were ordered to be served concurrently with count four.
On January 28, 2016, Coca filed an "Informal request for Court to recall sentence on its own motion" under section 1170, subdivision (d). He argued he should be resentenced due to his age, health issues, and the lack of "comparative seriousness" of the current offense. He argued the court should not consider his current conviction for petty theft to be his third strike because it fell "outside the spirit [of] the three-strikes" law. He again argued he was sexually abused as a child, he had no felony arrests from 2004 to 2015, and he was now 70 years old.
Respondent opposed the request and argued in its brief that Coca's entire life has been dedicated to "targeting, victimizing, attacking and violently harassing women." There has been no new information presented to the court to allow it to reconsider its sentence.
The court held a hearing on July 13, 2016, where the prosecution argued there was nothing to suggest that the court should strike one of Coca's prior strikes. The court found that this case involved the prospect of great bodily injury as Coca was armed with a weapon at the time of the offense. Coca had numerous and serious prior felony convictions as an adult. The court stated it would exercise its discretion as to counts one and two and "dismiss one prior strike only for sentencing purposes." "The Court does not dismiss any of the priors for the purposes of the Count 4." The court stated its reasons for dismissing the prior strike were Coca's age and the victim did not suffer great bodily injury. The court also noted that Coca had not been involved in any violence since his last release from custody.
As to count four, the court stated: "I don't believe that I have discretion to take all of the counts out of the three-strikes sentencing law. The defendant will be sentenced under the provisions of the two-strikes sentencing law as to Counts 1 and 2." The court explained that it had not seen a case "where a dismissal of a strike prior was upheld where the present crime involved some violence but not great bodily injury; or I have not seen a cause where the Court's discussion of the three-strikes law would allow the dismissal of a strike under these circumstances." The court stated that if "cases showed that the Court had true discretion on these facts, all I can say is that the Court would probably exercise its discretion to the defendant's benefit. The Court finds that it doesn't have discretion as to that count."
The court imposed the following sentence: 6 years on count one plus 10 years for the two priors, for a total of 16 years; 8 years on count two plus 10 years for the two priors, for a total of 18 years; 6 months on count three with credit for time served; 25 years to life for count four plus 10 years for the two priors, for a total of 35 years to life; and 90 days in jail for counts five and six with credit for time served. Count one and two were to be served concurrently with the other counts, and count two was stayed under section 654.
2. Sentencing Error
Coca argues the trial court erroneously believed it lacked discretion to dismiss a prior strike conviction pursuant to Romero, supra, 13 Cal.4th 497.
"In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385[, subdivision] (a)." (People v. Williams (1998) 17 Cal.4th 148, 158.) A court's discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is reviewable for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.) "[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
A "trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation.]" (Carmony, supra, 33 Cal.4th at p. 378.) "A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8, citing People v. Ruiz (1975) 14 Cal.3d 163, 168.)
The parties here dispute the meaning of the court's statements at the hearing. Respondent argues the court was "actually articulating frustration, albeit imprecisely, with the confines of its discretion." Respondent hypothesizes that the court believed it could not exercise its discretion because it would not withstand appellate review. Respondent contends the court was aware of its discretion but was acknowledging the limits of that discretion. There is some validity to respondent's point of view because the court clearly understood its discretion in dismissing a prior strike for counts one and two. Furthermore, the court considered the nature of the prior convictions, the current offense, and Coca's background and character. On the other hand, the court stated its belief it did not have "true discretion" to resentence Coca. The court appeared to believe it was limited by prior case law.
Where the record reflects that the trial court has not exercised informed discretion during sentencing, remand is appropriate. (People v. Belmontes, supra, 34 Cal.3d at p. 348 & fn. 8.) The trial court's statements demonstrate the court believed it lacked discretion and must sentence Coca pursuant to three strikes law as to count four. The court stated if it had "true discretion" it would exercise it, but it found "it doesn't have discretion as to that count." This was error under Romero.
Respondent argues reversal is not mandated because the record demonstrates it would have been an abuse of discretion to dismiss the prior strike. "Whether the trial court believed it had discretion to strike the alleged prior felony convictions or not, appellant has suffered no prejudice since it would have been a manifest abuse of that discretion to exercise it on this record." (People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1055.) "[R]emand to the trial court would constitute an idle act in that any order striking a prior serious or violent felony conviction would constitute an abuse of the trial court's discretion." (People v. Askey (1996) 49 Cal.App.4th 381, 389.)
We, however, believe the trial court should be given opportunity to exercise its discretion. We cannot say, as a matter of law, that if the trial court had stricken the prior conviction it would have been an abuse of discretion. We express no opinion concerning how the trial court should exercise its discretion or what Coca's sentence should be.
Coca contends the abstract of judgment must be corrected to accurately reflect the trial court's oral pronouncement of judgment, and the Attorney General agrees. In light of our remand for resentencing, this argument is moot.
IV.
DISPOSITION
The judgment is affirmed, but we vacate Coca's sentence and remand the case to the superior court for resentencing.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.