Opinion
F077226
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. GERARDO MENDOZA GONZALEZ, Defendant and Appellant.
Jill Marnie Klein, 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, Louis M. Vasquez and William K. Kim, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. LF011593A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Jill Marnie Klein, 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, Louis M. Vasquez and William K. Kim, for Plaintiff and Respondent.
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Gerardo Mendoza Gonzalez assaulted his sister's boyfriend and bit off part of his nose. He now challenges his conviction for aggravated mayhem and the resulting sentence. We affirm the judgment but changes in the law subsequent to his sentence require us to remand for limited resentencing.
BACKGROUND
Gonzalez attacked his sister's boyfriend, the victim. The attack began inside the sister's residence. After bloodying the victim inside, Gonzalez dragged the victim outside. The beating continued.
While assaulting the victim outside, Gonzalez announced, "I'm gonna [sic] eat him alive." Gonzalez was speaking quite literally and actually bit off part of his nose.
Gonzalez was convicted of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) with a true finding for actually causing great bodily injury (§ 12022.7). He was also convicted of aggravated mayhem (§ 205).
Unlabeled statutory references are to the Penal Code.
Due in part to his prior criminal history, Gonzalez was sentenced to an indeterminate term of life with a minimum parole eligibility period of 14 years, plus a 22-year determinate term. The sentence included consecutive terms for the aggravated mayhem and assault convictions. It also included two enhancements for a five-year prior serious felony conviction (§ 667, subd. (a)) and one for having served a prior prison term within five years of committing these crimes (§ 667.5, subd. (b)). These enhancements were based on the same underlying conviction.
DISCUSSION
Gonzalez raises separate claims against his conviction for aggravated mayhem and his ultimate sentence. To challenge his conviction, he argues the court forced the jury to continue its deliberations and failed to declare a mistrial after jurors twice informed the court of a deadlock.
To challenge his sentence, he raises the following three issues: (1) The court erroneously imposed consecutive sentences for the aggravated mayhem and assault convictions; (2) remand is appropriate to allow the trial court to consider striking the prior serious felony enhancement; and (3) remand is appropriate to strike the prior prison term enhancement.
We reject Gonzalez's challenge to his conviction. We likewise reject his consecutive sentencing argument but agree with his requests for remand. Accordingly, we will remand to the trial court for resentencing as it relates to the prior serious felony and prior prison term enhancements.
I. The Aggravated Mayhem Verdict Is Valid
Gonzalez presents two related but distinct claims to challenge his aggravated mayhem conviction. First, the court coerced the jury into returning a verdict. Second, the court abused its discretion in declining to declare a mistrial. We disagree with each in turn.
A. Additional Background
The jury first began deliberating near the end of the day on a Tuesday. On Wednesday morning, the jury requested readback of the testimony of two witnesses. On Thursday morning, the jury again requested readback of the testimony of one of those witnesses, as well as the testimony of a third witness. The jury did not deliberate again until the following Tuesday.
The following Tuesday morning, the jury wrote a note explaining they had "spent all of [T]hursday" on aggravated mayhem but "nothing ha[d] changed." They also reported they had reached verdicts on the remaining counts.
The court, speaking to the jury, stated,
"[M]y attention was drawn to the read back of testimony that's been requested on two separate occasions and specifically the length of time that that read back took, the Court has also considered the voluminous amounts of evidence that you folks have received as it relate[s] to all counts in the information, as well as the time that you have spent deliberating on this case. And the Court still believes
that there is a reasonable probability that you folks, if given the opportunity, can reach a unanimous decision on [aggravated mayhem]. In a moment I'm going to read to you an instruction for you folks to consider in furthering your deliberations. But before I do so, let me explain some tools that you have at your disposal. You folks have already utilized the tool of the read back of testimony of witnesses that testified in this case. You certainly can continue to do so if that is going to further your deliberations. You could also ask for further instructions on particular areas of the law applicable to this case, as well as clarifying instructions. You can also consider the evidence that's been presented to you by way of exhibits that that have been admitted if you do not have them at your disposal in the jury room. And lastly, a tool that is rarely informed of jurors, but utilized when informed, you can ask for further arguments by the attorneys on specific areas that you might have during your deliberation process and get their feedback or their argument on particular areas if you wish. So those are tools at your disposal that you can utilize regarding your deliberations in this case."The court then concluded by reading CALCRIM No. 3551, quoted as follows:
"Sometimes juries that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict on one or more counts. Please consider the following suggestions: Do not hesitate to re-examine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. Each of you must decide the case for yourself and from [sic] your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict.
"Both the People and the Defendant are entitled to the individual judgment of each juror.
"It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective.
"Let me know whether I can do anything to help you further, such as give additional instructions or clarify instructions I have already given you.The jury resumed their deliberations.
"Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing, using the form my bailiff has given you."
A few minutes later, the jurors asked for additional arguments on aggravated mayhem. The parties obliged and the jury continued deliberating. Near the end of the day, the jurors informed the court, "[W]e still cannot come to an agreement. We have changed 1 vote on" aggravated mayhem.
Outside the jury's presence, the court told counsel it planned "to bring the jurors into the courtroom, and query them about if there is anything further that can aid and assist in their deliberation. And if not, I will have suggestions for them if none of them appear to be fruitful, then the Court's tentative is to declare a mistrial on" aggravated mayhem and then record the other verdicts.
This summarized colloquy followed. The court first asked the jury foreperson if additional jury instructions would be helpful. The foreperson answered, "No."
The court then proposed the same question to all jurors. One juror asked, "I have a question." "What would the directions - or like could we know exactly what that would be or no?"
The court replied, "It would just require you sending out a note ...." The juror then said, "Okay. Maybe I shouldn't have said no maybe I should have said maybe."
The jurors collectively did not believe reviewing exhibits would help. In response to whether further arguments would help, the foreperson replied, "I'm going to say no."
Two jurors believed "further argument" or "more pinpointed question[s] ... might aid in furthering ... deliberations ...." The court concluded "it does appear that you folks can continue your deliberations with this case, that there might be other avenues that you can explore in furthering your deliberations ...." The jury was ordered to reconvene the following morning.
After reconvening in the morning, the jury asked for readback of testimony concerning Gonzalez's statement that he would eat the victim alive. The jury returned a verdict on all counts less than one hour later.
The jury's final note indicated it had reached a verdict on all counts. The note included a handwritten "happy face." Gonzalez makes much of this drawing on appeal. We do not. Gonzalez claims the "happy face" indicates compromise and relief yet produces nothing but speculation to support the claim. The jurors were not polled for their verdicts. The record does not indicate the jurors were interviewed after the trial about the drawing. Nor does the record contain any post verdict attempts to establish juror misconduct. In the absence of all attempts to decipher the intent underlying the drawing we will not ascribe any relevance to its existence.
B. The Verdict Was Not Coerced
Gonzalez claims the "trial court's disregard of the jury's inability to reach a verdict and its charges to the jury that a verdict was possible, given the totality of the circumstances, were coercive and improperly directed the jury that it was required to reach a verdict." He argues the court's comments "were particularly coercive in this case because upon inquiry, the foreperson advised the trial court that neither additional jury instructions, nor further review of the exhibits would assist in furthering deliberations. [Citation.] Thus the initial [admonishment to resume deliberations], coupled with the disregard of the foreperson's advisement that neither further argument nor examination of the evidence would be helpful, affirmatively demonstrates pressure on the jury to reach a verdict ...." He is incorrect.
"Section 1140 provides in relevant part that a 'jury cannot be discharged' without having rendered a verdict unless, 'at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree.' 'The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion.' [Citations.] However, a court must exercise its power under section 1140 without coercing the jury, and 'avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." ' [Citation.] ... '[A]ny claim that the jury was pressured into reaching a verdict depends on the particular circumstances of the case.' " (People v. Brooks (2017) 3 Cal.5th 1, 88-89 (Brooks).)
The court here did not coerce the jury. The court never inquired into the numerical division amongst deadlocked jurors. At no point did the court ask a presumed minority of jurors to vote with the majority simply to reach a verdict. (See People v. Gainer (1977) 19 Cal.3d 835, 852 ["it is error for a trial court to give an instruction which ... encourages jurors to consider the numerical division or preponderance of opinion on the jury in forming or reexamining their views".]
"Nor did the court either express or imply to the jurors that they must reach a unanimous verdict, or a particular outcome." (Brooks, supra, 3 Cal.5th at p. 89.) In fact, the court suggested the exact opposite: "It is your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict." In ordering further deliberations the trial court appropriately relied on the neutral—not coercive—content in CALCRIM No. 3551 and California Rules of Court, rule 2.1036.
In arguing otherwise, Gonzalez dismisses the jurors' vote changed after advising the court of its initial deadlock. Importantly, the vote changed after the jury sought and received additional arguments from counsel. These facts signal meaningful deliberations and not coercion or compromise.
Gonzalez similarly dismisses the fact at least two jurors believed additional deliberation would benefit the jury. The jury ultimately asked for readback of the testimony describing Gonzalez's intent to "eat" the victim "alive." This testimony was likely critical to the verdict due both to its content and how soon after the readback it followed. This process again points to active debate within the jury and not external coercion by the court.
Its content was likely critical because aggravated mayhem requires, in part, the intent to permanently disable or disfigure a victim, or deprive that victim of a limb, organ, or other body part. (§ 205.)
Put simply, the record does not indicate " 'the jury was pressured into reaching a verdict ....' " (Brooks, supra, 3 Cal.5th at p. 89.) "Coercion occurs where 'the trial court, by insisting on further deliberations, expresse[s] an opinion that a verdict should be reached.' " (People v. Peoples (2016) 62 Cal.4th 718, 783 (Peoples).) Because the court expressed no such opinion, we reject the jury coercion claim.
C. The Trial Court Properly Ordered Continued Deliberations
In a closely related claim, Gonzalez argues the trial court abused its discretion in failing to declare a mistrial. We find this contention is without merit.
Whether the supposed error is due to the trial court not declaring a mistrial on its own or pursuant to a defense motion is irrelevant because the facts and issues presented are the same. Accordingly, we address the simple fact no mistrial was declared.
" 'The decision whether to declare a hung jury or to order further deliberations rests in the trial court's sound discretion.' " (People v. Lopez (2018) 5 Cal.5th 339, 364.) "[A] court 'is not bound to take as final the statement of the [jurors] that they cannot agree upon a verdict.' " (People v. Valdez (2012) 55 Cal.4th 82, 159.) "[A] trial court does not abuse its discretion merely by declining to poll the jury as to the likelihood of reaching a unanimous verdict." (Peoples, supra, 62 Cal.4th at p. 782.)
Here, the court twice ordered continued deliberations. The first time, the court unilaterally determined more deliberations might prove fruitful. The court based its conclusion on the actual length of deliberations, discounting the readback of testimony in response to jury notes, compared to the length of the trial. This was reasoned and sound judgment. The court need not in every instance inquire into the jury's deliberations prior to reaching such a decision. (Peoples, supra, 62 Cal.4th at p. 782.)
The second time the court ordered more deliberations it relied on two jurors who believed more deliberations would help. Reliance on these statements was eminently reasonable. The jurors themselves indicated they were perhaps not as deadlocked as initially reported.
Even when jurors steadfastly believe they cannot reach a verdict, a court may still reasonably exercise its discretion to order additional deliberations. For example, in People v. Sandoval (1992) 4 Cal.4th 155, 194-195 (Sandoval), each juror believed "there [was no] reasonable possibility with further deliberations [they could] arrive at a verdict ...." But "the virtually even split [in the vote] and the jurors' individual statements against the usefulness of further deliberations" did not eliminate "the court's discretion to require further deliberations." (Id. at p. 196.)
In contrast to Sandoval, supra, the record here reveals active deliberations with at least some jurors believing further deliberations might bear fruit. Because the record in Sandoval did not disclose an abuse of discretion, the record here compels a similar result. Accordingly, we find the court did not abuse its discretion.
II. The Court Did Not Violate Section 654
The court sentenced Gonzalez consecutively for each conviction. Gonzalez now argues section 654 prohibited consecutive sentences. We find the sentence compliant with section 654.
A. Additional Background
In concluding consecutive sentences were appropriate, the court acknowledged the crimes "occurred in a relatively brief period of time ...." The court stated, "[W]hen considering the evidence presented to this jury it was clear [the assault and aggravated mayhem] were separate incidents." The court specifically found "that they were separate events with separate objectives and separate intentions so as to justify consecutive sentencing."
Gonzalez points out that during the trial, the court stated the "time period ... was so brief in time as to suggest one intent and motive when the defendant was comporting himself based on how the evidence has been presented." These comments were made in relation to jury instruction CALCRIM No. 3500, which would have required the jury to "agree on which act" constituted assault. The proposed instruction did not ask the jury to differentiate between assault and aggravated mayhem.
B. Analysis
"Section 654, subdivision (a) provides that '[a]n 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.' ' " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " ' [Citation.] Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 353-354 (Jackson).)
" 'The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective.' " (Jackson, supra, 1 Cal.5th at p. 354.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
" ' "[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) "[A] ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' " (Id. at p. 377.) "[W]e may ... affirm the trial court's ruling, if it is supported by substantial evidence, on any valid ground." (People v. Capistrano (2014) 59 Cal.4th 830, 886, fn. 14.)
Substantial evidence supports the court's finding these crimes were "separate events with separate objectives and separate intentions" precisely because Gonzalez began biting the victim only after announcing his intent to do so. The assault began inside the residence. It ended outside the residence. While outside, Gonzalez declared his intent to eat the victim alive and proceeded to do so by biting his nose.
On this record "the sentencing decision was [not] irrational or arbitrary." (Carmony, supra, 33 Cal.4th at p. 376.) Gonzalez has not met his burden to show otherwise. Accordingly, his section 654 sentencing claim fails.
III. Limited Remand For Resentencing Is Warranted
Senate Bill Nos. 136 (Stats. 2019, ch. 590, § 1) and 1393 (Stats. 2018, ch. 1013, § 1, 2) altered the sentencing landscape after Gonzalez's trial and sentence. He now asks us to remand the case for resentencing so he may potentially receive the benefit of these new laws. The People concede. We accept the concessions.
Gonzalez raises a second claim to attack the prior prison term enhancement. He argues People v. Jones (1993) 5 Cal.4th 1142, 1150 prohibits a five-year prior serious felony enhancement and a prior prison term enhancement for the same underlying conviction. The People concede the error. --------
A. Senate Bill No. 136
"Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. (§ 667.5, subd. (b).) ... Effective as of January 1, 2020, Senate Bill No. 136 amends section 667.5, subdivision (b) to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b)." (People v. Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings).)
"[U]nder the [In re Estrada (1965) 63 Cal.2d 740] rule, Senate Bill No. 136's amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date. Because" this case is still not final, Gonzalez "is entitled to the ameliorative benefit of Senate Bill No. 136's amendment to section 667.5, subdivision (b)." (Jennings, supra, 42 Cal.App.5th at p. 682.)
B. Senate Bill No. 1393
Senate Bill No. 1393 "g[a]ve trial courts discretion at sentencing to strike five-year prior serious felony enhancements in 'furtherance of justice.' " (People v. Johnson (2019) 32 Cal.App.5th 26, 68.) The bill, which took effect on January 1, 2019, applies retroactively to all cases not yet final on appeal. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972.)
Because the sentencing hearing in this case occurred in 2017, the trial court did not yet have discretion to consider striking the five-year prior serious felony enhancement. Gonzalez is entitled to remand for the court to exercise its discretion.
DISPOSITION
The judgment is affirmed. We remand the matter only to allow the trial court to exercise its discretion to strike the five-year prior serious felony enhancements. Upon remand, the court shall strike the prior prison term enhancement.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
SMITH, Acting P.J. /s/_________
MEEHAN, J.