Opinion
A148034
07-13-2017
THE PEOPLE, Plaintiff and Respondent, v. GERMAN RUBALCABA LOPEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR303740)
A jury convicted German Rubalcaba Lopez (appellant) of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and attempted voluntary manslaughter (§§ 664, 192, subd. (a)) and found true various sentencing enhancement allegations. The trial court imposed aggravated terms on the voluntary manslaughter conviction (§ 192, subd. (a)) and the firearm use enhancement (§ 12022.5, subd. (a)(1)) and sentenced appellant to a total of 22 years in state prison.
All undesignated statutory references are to the Penal Code.
On appeal, appellant claims his sentence was the "product of improper judicial bias" and that trial counsel was ineffective for failing to object to the bias. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged appellant with the murder of Xavier Lopez (§ 187) and the attempted murder of Gustavo Ortega (§§ 664, 187). The information alleged personal discharge and firearm use enhancements (§§ 12022.5, subd. (a)(1); 12022.53, subds. (b), (c), (d)).
Prosecution Evidence
The prosecution's theory was appellant planned to kill Gustavo Ortega and enlisted Xavier's help in committing the murder. When the killing did not go as planned, appellant shot and killed Xavier.
We sometimes refer to certain individuals by first name for clarity and convenience.
A. The Gustavo Ortega Shooting
In 2013, appellant lived with Gustavo Ortega. The two men had been living together for about 15 years; they shared a bedroom with two beds. Appellant referred to Gustavo as his "uncle" but the men were not related. In 2013, Xavier — appellant's half-brother — was in Mexico. In early November 2013, appellant told Xavier's brother, Ismael, that Xavier was coming to the United States to visit. Appellant arranged for Xavier to take a bus to Stockton. Appellant met Xavier in Stockton and drove him to the home appellant shared with Gustavo.
On November 5, 2013, appellant's neighbor heard gunshots. He went outside and saw three men, two of whom were wrestling and fighting in the street. The neighbor thought he recognized appellant. The neighbor ran inside and told a family member to call 911. When the neighbor ran back outside, he saw Gustavo on the ground. A handgun was on the ground, near Gustavo's body. Gustavo told the neighbor he had been shot. The neighbor saw a young man run away. At 4:30 p.m., a police officer arrived and found Gustavo on the ground, with a gunshot wound in his chest. A .38-caliber handgun was near Gustavo's feet. The handgun belonged to appellant's brother, G.L. Shortly after the shooting, G.L. reported the gun missing. Emergency personnel took Gustavo to Northbay Healthcare, where a bullet was removed from chest. The bullet was fired from a .38-caliber handgun.
Another neighbor, H.S., heard a gunshot. He saw two men fighting; one of the men, Gustavo, was on the ground. According to H.S., a young man fired a gun at Gustavo, who implored the man not to shoot. The shooter ran away after H.S. grabbed a baseball bat and screamed at him. H.S. saw a .38-caliber pistol on the ground near Gustavo. According to H.S., appellant arrived in his car after the shooting.
B. The Xavier Lopez Shooting
On the afternoon of November 5, 2013, appellant called Xavier's brother, Ismael, and told him Xavier had been shot and "was bleeding to death." In the background, Xavier yelled that he had been shot and that his hand hurt. Ismael told appellant to take Xavier to the hospital, and threatened to send the police to appellant's house if he did not comply. Appellant told Ismael another person had also been shot and that he "had to hang up because the police were following him." Appellant said he was going to throw away his cell phone.
At 5 p.m., a Kaiser Hospital (Kaiser) employee was in the hospital parking lot when she saw a disheveled man walking back and forth from the street to a parked car. The man talked to a person inside the car. The employee heard one or two gunshots. When the employee turned around to see what had happened, the disheveled man was gone and the car had turned around. The employee heard another gunshot. The car drove away.
A Kaiser emergency room doctor learned there was a gunshot victim in the parking lot. Outside, the doctor found a man — later identified as Xavier — lying on the curb with a gunshot wound in his left torso. He was dead. There were gunshot wounds in Xavier's back, buttocks, and left hand. The gunshot wound in Xavier's palm was a "close-range injury." The bullets in Xavier's body were fired from a 9-millimeter pistol. A police officer found blood and a 9-millimeter casing nearby.
C. Appellant's Conduct and the Police Investigation
At 7:00 p.m., appellant's neighbor picked up appellant near a gas station. Appellant seemed nervous. The neighbor said Gustavo had been shot and was going to the hospital. Appellant asked the neighbor to take him to Kaiser and the neighbor complied. Near the hospital, however, the two men saw police cars with lights activated and appellant directed the neighbor to drive him to a relative's house.
At approximately 9:00 p.m., appellant told an ex-girlfriend a "crackhead" broke into his home and shot Gustavo. Appellant said he shot and killed the intruder. Shortly thereafter, appellant went to another neighbor's house and said he "had shot somebody." At appellant's request, that neighbor drove appellant to his car. Appellant spent some time inside his car, and then returned to the neighbor's car. The neighbor and appellant went to the neighbor's house, where appellant asked for a box. The neighbor gave appellant a shoe box; later, appellant returned the box and told the neighbor not to open it. Then appellant asked for a ride to the police station. A police officer retrieved the box from the neighbor. It contained the 9-millimeter pistol used to shoot Xavier.
Law enforcement officers arrested appellant and interviewed him twice. During the interviews, appellant said Xavier shot Gustavo. Xavier — who had something wrapped around his hand — told appellant he had been shot. As appellant drove Xavier to the hospital, Xavier said he shot Gustavo because Gustavo had molested appellant. Appellant told Xavier that was not right, and Xavier threatened to have his " 'people come down here and get rid of [appellant]' " and " 'tak[e] . . . [appellant's] people out.' " Appellant was afraid because Xavier was a cartel hitman and had "Sinaloa" tattooed on his back. At the hospital, appellant stopped the car, grabbed his pistol, and shot Xavier. Appellant did not intend to kill Xavier — only to warn him against harming appellant's family. Appellant also claimed Xavier said, " 'shoot me' " because he thought he was going to die.
The prosecution played recordings of the interviews for the jury and the court admitted interview transcripts into evidence. We provide an overview of the interviews, which span several hours.
When appellant was 15, Gustavo molested him. Gustavo also sexually abused appellant's brother and sister. Appellant denied planning to shoot Gustavo, and claimed he did not know where Xavier obtained the gun used in the shooting. Later, however, appellant admitted giving Xavier the gun before the shooting, and devising the plan to confront and intimidate Gustavo. Appellant admitted he had been "wanting to do this since [he] was 15."
Law enforcement officers found gunshot residue on the passenger side door of appellant's car. In appellant's bedroom, officers found boxes of 9-millimeter ammunition and a handgun holster.
Defense Evidence
When appellant's brother, G.L., was seven or eight years old, Gustavo raped him. Gustavo sexually molested appellant's sister two times when she was between 8 and 10 years old. Appellant's sister saw Gustavo raping appellant. Psychiatrist Harvey Dondershine, M.D., interviewed appellant and reviewed police reports and police interview transcripts. Dr. Dondershine diagnosed appellant with Post Traumatic Stress Disorder based on appellant's claim that Gustavo sexually assaulted him.
Verdict and Sentencing
The jury found appellant not guilty of murder and attempted murder, but found him guilty of the lesser included offenses of voluntary manslaughter of Xavier (§ 192, subd. (a)) and attempted voluntary manslaughter of Gustavo (§§ 664, 192, subd. (a)). The jury found true the personal discharge and firearm use allegations (§§ 12022.5, subd. (a)(1); 12022.53, subds. (b), (c), (d)).
A. Sentencing Memoranda
The probation department recommended an 11-year prison term. It noted two aggravating factors: (1) the manner of the crime indicated planning; and (2) appellant took advantage of a position of trust to commit the offense (Cal. Rules of Court, rule 4.421). The probation department noted two mitigating factors: (1) appellant had no prior record; and (2) he voluntarily acknowledged wrongdoing (Cal. Rules of Court, rule 4.423).
Defense counsel urged the court to grant probation and pointed to "numerous" unusual and mitigating circumstances, including appellant's: (1) PTSD diagnosis, which "partially excus[ed]" his conduct; (2) lack of a prior record; and (3) suffering of "unspeakable trauma at the hands of one of the victims." Defense counsel argued the crime was unlikely to reoccur and noted appellant voluntarily surrendered, confessed to the crime, and tried to resolve the case before trial. (Rules of Court, rules 4.413, 4.414, 4.423.)
The prosecution urged the court to impose a 22-year prison term, comprised of the 11-year aggravated term on the voluntary manslaughter conviction (§ 192, subd. (a)), a 1-year term on the attempted voluntary manslaughter conviction (§§ 664, 192, subd. (a)), and the 10-year aggravated term on the firearm use enhancement (§ 12022.5, subd. (a)(1)). It pointed to several aggravating factors, including appellant's use of a firearm and his "cruelty" and "callousness" in committing the offenses. The prosecution also noted Xavier was vulnerable and that appellant induced him to participate in the crime. (Cal. Rules of Court, rule 4.421.) As the prosecution explained, appellant "procured a person to commit a murder, and when that crime did not go as planned, he shot and killed [Xavier] for that crime. It is clear that [appellant] was behaving in a manner far outside the norm, and he is fortunate that he was not convicted of a more serious crime; what should not be ignored . . . is the violent nature of his conduct that resulted in him being convicted of a homicide."
B. Sentencing Hearing
At the sentencing hearing, the court imposed a 22-year prison term and explained: "We're dealing here with someone who's essentially set out to set himself up as the jury—the judge, the jury and the executioner of a human being. That's what he did. There was extensive planning that went into him ultimately bringing Xavier Lopez to this area. He paid for [Xavier] to come to the Valley, and then drove to the Valley to pick [Xavier] up.
"And I'll just say, you know, there's a lot of this—there's a lot of facts here that came out or statements, items that are being considered as facts here that are—that was simply attributable to what the [appellant] told the police in that statement he gave them. Much of this was self-serving, and much of what he told the police in that interview was untrue. He started out just lying right off the bat and said he wasn't responsible for any of this. So for him to sit here and make the argument . . . that he made the choice to come in and confess to the police couldn't be further from the [truth]. He came in and he was going to do his best to talk his way out of this, and that's what he tried to do. And he lied to the police. . . . He lied to the police about the facts of how this happened. He lied—he never did really give the police a reason as to why he shot his brother. He went around and around and around and around on that issue. He was evasive. And all of this got in front of the jury, all of it, because the district attorney moved that statement into evidence or this wouldn't have been in evidence. We've never heard one thing from the [appellant] under oath. He didn't choose to talk to probation, and that's his right. But the fact of the matter is the only statements I have from him come from this statement he made to the police where he says things, for example, like Xavier Lopez was a hitman for the Sinaloa. There's no evidence for any of that. . . . but that's what he tells the police in an attempt to mitigate his responsibility.
"I was struck when I watched—when I looked at the photographs here, when we looked at the photographs of [appellant's] house, the bedroom that he apparently shared with Mr. Ortega for many, many years. This claim he has of assault as a young man may or may not have happened, but that was—that was a claim from more than fifteen years before these crimes occurred, and there's this unexplained period of at least ten years and maybe longer where apparently he and Mr. Ortega lived together. They shared this bedroom that's in the photographs. He apparently had this life he lived there, and then he had his life that he lived otherwise. He had relationships outside of his relationship with Mr. Ortega. He had a child with one woman. He had a girlfriend that apparently he met during his involvement in politics when he ran for City Council, and it's absolutely mystifying to the Court how this position that all of this behavior all this time was somehow coerced or is a product of these events which happened when he was fourteen or fifteen years old. No one has ever really asked him about it. He's never talked about it, and all I—all I have to work with is this statement that he gave the police, which as I said was filled with untruths. Now I'm sure some of it was true. It's just difficult to know which parts were true and what was just being said for self-serving purposes. But [appellant] clearly had no reservations in lying to the police that night that he was interviewed or the following day.
"[W]ith regard to the killing of [Xavier], one of the circumstances that I think is very significant is the fact that these two shots were fired over a period of time. It wasn't just a bang, bang. The witness who testified said it was a while between the first shot and the second shot. Another witness said she saw the car turn around, and it appeared [appellant] being back to where the body was lying and then the shot was fired. This is an execution. This is not a shot being fired in the heat of the moment or because of a sudden quarrel. This was an absolute determination to insure [sic] that [Xavier] was dead.
"Now, the jury heard from Dr. Dondershine and concluded that murder had not been proven in this case, and we do have to accept the jury's verdict, but I think it's important to note that all of this comes from these untested self-serving statements that would not even have been before the jury—none of this would have been before the jury at all if the People had not allowed that statement to come in. . . . [Appellant] managed to get all of this information in front of the jury without ever taking the stand. He was never subject to cross-examin[ation] on any of this. And as I said, who knows what's true and what's not true.
"I think that—I think [appellant] got one tremendous break when the jury acquitted him of murder, particularly with respect to the charge involving [Xavier]. One unexplained factor in all of this is why [appellant] armed himself when he went to pick [Xavier] up. That's what he says. He says he came home, saw that Mr. Ortega was lying there. He maintains he armed himself at that time, and it would appear to me that there would be no reason for him to be arming himself at that time unless he had already determined that the plan had gone awry, [Xavier] was not going to get out of town unidentified because Mr. Ortega was still alive. It certainly is reasonable to think that was the time that he decided he needed a gun.
"I think this is significant only because nobody ever asked, [appellant] never explained in his statement to the police why he decided to take the gun at that time, but we know what he did with it. He discharged it twice into [Xavier's] back. [Xavier], who was already injured, significantly injured and in need of medical treatment, was trying to get into the emergency room at Kaiser. He was walking away from [appellant] when he was shot the first time. He wasn't even looking at him. He was shot in the back—well, he had the two shots, one I think in the buttocks, one in the back. And as I said, the witness who reported hearing the shots said they were spaced, they didn't happen just bang, bang in that order.
"Probation has recommended . . . the mid-term both for the voluntary manslaughter, the [section] 192(a), and the personal use of a firearm under [section] 12022(a)(5). They haven't really specified why they thought the mitigated circumstance was appropriate. The defense argues . . . this would be an appropriate case for probation. I do not think that this is an appropriate case for probation. I do not think this is unusual. I think whatever the weight of these claimed sexual assaults by Gustavo Ortega on [appellant] in his early teens has more than been taken into consideration in the findings by the jury of his finding not guilty of the murder, either first or second degree. And with respect to the doctor's testimony, again, um, there was no indication that the doctor questioned anything [appellant] told him, just accepted it all. But we know [appellant] was not honest with the police. We know that he was not honest with [Xavier], and I see no reason to just accept all this as fact. There was no proof of any of this, just his statement."
Defense counsel objected, noting appellant's sister testified she saw the sexual assault.
The court noted it was "skeptical" of the abuse claim because appellant was not an "uneducated man, and he's familiar with government. He ran for City Council. There was absolutely nothing to prevent him from contacting the police any time he wanted if there was any type of misconduct going on or being perpetrated against him by Mr. Ortega in his adult years, and he clearly wasn't being that closely controlled by Mr. Ortega because, as I said earlier, he had these other relationships going on. It's a mystery to me exactly what happened here. All I know is it appears that he was making his choices in this matter. He had the one life he was living with Mr. Ortega and another that he was living outside. Apparently he chose not to intermingle those. But in any event, in any event, the jury did find from the evidence that these killings were not premeditated and this was not murder. And I think that this fact that you've repeated over and over and over, the fact that he was the victim of this, you refer to them as unspeakable acts has been more than taken into account in the jury's verdict, and I think that whatever value they had at the time this occurred is far outweighed by his planning and by the facts of this offense itself the manner in which he shot his brother, the reason why he chose to shoot his brother. Again, I don't—I don't accept that as necessarily true at all. I don't think there's any more likelihood than he shot [Xavier] because he was scared of [Xavier] than he simply knew that if [Xavier] was alive, he was going to be identified as being involved in this."
The court continued: "None of this would have occurred" if appellant had not "commissioned [Xavier] to come from Mexico. He paid for the whole thing. He paid for it, and then he became the judge, the jury and the executioner when things went wrong. That's what he did. Ordinarily, you know—this is unusual. It's absolutely unusual. We're not dealing with murder in this case, but that was the jury's decision, and I accept their decision. But I don't think that this translates to no responsibility for this action. I think this is—I think his decision in shooting his brother twice, his decision to take the gun—why take the gun. . . . [H]e stole [G.L.'s] gun to give to Mr. Ortega [sic]. That's another factor that just shows how calculating he was. Now, he could have given Mr. Ortega [sic] his gun, but he wasn't going to do that. He wanted his gun in case things went wrong. And when they did, he didn't hesitate to shoot [Xavier] twice in the back. I think this is an aggravated situation. I think that, as I said before, [appellant] is very fortunate to be dealing with a manslaughter charge, and I think there's been more than—well, there's been significant recognition of his claims of early abuse in all of this.
"I agree with the People's assessment of the factors in aggravation both with respect to the crime and the use of the firearm. There certainly is—the fact that [appellant] has no criminal record is certainly a point in his favor. But when you think about the circumstances of his crime, the way it was set up, the amount of planning that went into it, I think that more than outweighs any factors in mitigation."
The court sentenced appellant to 22 years in state prison, comprised of the aggravated term of 11 years on the voluntary manslaughter conviction (§ 192, subd. (a)), the middle term of one year on the attempted voluntary manslaughter conviction (§§ 664, 192, subd. (a)) and the aggravated term of 10 years on the firearm use enhancement (§ 12022.5, subd. (a)(1)).
DISCUSSION
Appellant contends his sentence was the "product of improper judicial bias" and that trial counsel was ineffective for failing to object to the bias at sentencing.
I.
Appellant Forfeited His Judicial Bias Claim
A defendant "has a due process right to an impartial trial judge under the state and federal Constitutions. [Citations.] The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case." (People v. Guerra (2006) 37 Cal.4th 1067, 1111 (Guerra), overruled on another ground as recognized in People v. Clark (2016) 63 Cal.4th 522, 583.) "As a general rule, a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review." (People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) Here, appellant did not object to the alleged bias at the sentencing hearing. As a result, he has "forfeited the claim on appeal." (See People v. Pearson (2013) 56 Cal.4th 393, 447; People v. Rodriguez (2014) 58 Cal.4th 587, 626 [a defendant "may not go to trial before a judge and gamble on a favorable result, and then assert for the first time on appeal that the judge was biased"].)
II.
Appellant's Ineffective Assistance of Counsel Claim Fails
Appellant contends trial counsel was ineffective for failing to object to the court's "demonstrated bias" at the sentencing hearing. To establish ineffective assistance of counsel, " 'a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.' " (People v. Johnson (2015) 60 Cal.4th 966, 979-980.)
Appellant's ineffective assistance of counsel claim fails because the record does not establish judicial bias. At the sentencing hearing, the court considered the aggravating and mitigating factors and gave a lengthy explanation for its decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847; Cal. Rules of Court, rule 4.420.) Appellant does not contend the sentence was an abuse of discretion. His disagreement with the court's decision to impose the aggravated terms on the voluntary manslaughter conviction and firearm use enhancement does not demonstrate judicial bias, nor does the fact that the sentence exceeded the probation department's recommendation. (Guerra, supra, 37 Cal.4th at p. 1112.) The court presided over the trial and was entitled to comment on the evidence; its opinion that appellant lied to the police and its skepticism of appellant's molestation claim were supported by the record. "Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias." (Id. at pp. 1111-1112.)
"The 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. Superior Court (1992) 5 Cal.App.4th 822, 831.)
There is no of evidence of judicial bias. As a result, trial counsel was not ineffective for failing to object at the sentencing hearing.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.