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People v. Nieto

California Court of Appeals, Fourth District, First Division
Jul 26, 2021
No. D077624 (Cal. Ct. App. Jul. 26, 2021)

Opinion

D077624

07-26-2021

THE PEOPLE, Plaintiff and Respondent, v. JOSE NIETO, Defendant and Appellant.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, No. SCN394621 Harry M. Elias, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

HALLER, J.

Defendant Jose Nieto consumed concentrated marijuana, became paranoid, and called 911 to request law enforcement and medical assistance because he felt unsafe. When three sheriff's deputies responded to the call, Nieto fired a semiautomatic handgun toward them from inside his house. A SWAT team eventually took Nieto into custody. A jury found Nieto guilty of three counts of assaulting a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2)), and found true the enhancement allegations that he personally used (§§ 12022.5, subd. (a)), § 12022.53, subd. (b)) and personally and intentionally discharged (§ 12022.53, subd. (c)) a firearm in the commission of the offenses. The trial court sentenced Nieto to 31 years, eight months in prison.

Further unspecified statutory references are to the Penal Code.

Nieto raises three claims of error on appeal. First, he challenges the sufficiency of the evidence supporting the jury's findings that he knew, or reasonably should have known, that each of the people he was assaulting was a peace officer. Second, he contends the trial court erred by failing to instruct the jury that it could consider his voluntary intoxication, not as a defense to the crime of assault, but in determining whether he knew that the people he was assaulting were peace officers. Third, he contends the court abused its sentencing discretion by failing to give sufficient weight to his mitigating circumstances, and by misunderstanding the scope of its discretion in imposing firearm enhancements. For reasons we will explain, we find no prejudicial error.

Nieto also requests that we independently review certain law enforcement personnel records that were the subject of a prosecution motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) As we will explain, in light of the narrow scope of the prosecutor's motion, and the detailed records attached to it, our independent review is unnecessary.

Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Emergency Calls

At 3:43 p.m. on December 20, 2018, Nieto called 911 and told the California Highway Patrol (CHP) operator who answered, “I need emergency. Um, I just don't feel safe in my own house.” Nieto gave an address on Adams Street in the Pauma Valley area. The CHP operator told Nieto not to hang up because the operator was “going to bring the sheriffs on the line with us.” Nieto somehow became disconnected from the call.

Two minutes after the first call, Nieto called 911 again and told a different CHP operator, “I'm reporting I feel a little unsafe in my home. I'm a proud American, ma'am. I'm an RN. I work for a home health agency, San Diego County, ma'am. I just moved here; I love nature. I was fuckin (unintelligible).” The operator explained that because of where Nieto was calling from, his “phone call came into California Highway Patrol.” The operator asked Nieto, “Do you need police, or do you need paramedics?” He replied, “I need both, ma'am.” The operator then advised, “This is California Highway Patrol. I'm going to bring on the sheriffs. I want you to stay on the line. I'm bringing on the sheriffs. Do not hang up.”

The CHP operator transferred the call to a sheriff's operator, whom Nieto asked to “get paramedics and... the police department.” Nieto reiterated that he felt unsafe, was a proud American, and was “just a nurse trying to figure out life.” The operator confirmed Nieto's name and phone number, and advised, “I have two deputies en route.” The operator asked Nieto why he was requesting an ambulance. Nieto's response was disjointed.

The sheriff's operator told Nieto to stay on the line, and attempted to transfer his call to a fire department operator. Nieto somehow became disconnected from the call.

About 20 minutes after Nieto called 911, his coworker called a law enforcement nonemergency number to request a welfare check on Nieto. She explained to the operator that Nieto had called her to say he did not feel safe and “could hear other voices talking to him.” The coworker gave the operator Nieto's address on file with the employer.

About 13 minutes after the coworker's call, a taco shop employee called 911 at Nieto's request. The employee told the operator that Nieto had called to order food, and then “outta nowhere... he said, ‘Help me please, call 911..., someone's shooting me. I've been shot. There's people shooting at me,' like ‘Help me.' And... it just got quiet and then I heard like [¶]... [¶] it kind of sounded like gunshots.”

Deputies' Response

In response to Nieto's calls, three San Diego County Sheriff's deputies-Cory Crawford, Jared Muli, and John Avedesian-were dispatched from the Valley Center substation to an “unknown trouble” or “welfare check” call. The deputies were all wearing full deputy sheriff uniforms and driving marked black-and-white patrol vehicles. Due to the rural nature of the area, it took the deputies about 25 minutes to eventually arrive at Nieto's house.

The deputies initially responded to the address Nieto provided the 911 operator, but when an elderly man answered the door, the deputies determined it was the wrong address. As the deputies were leaving, the dispatcher advised them that a friend of Nieto's (likely the coworker discussed above) had called and provided a correct address across the street from their location.

The deputies parked parallel along Adams Street at the top of the driveway leading down to Nieto's house. Deputy Avedisian activated his body-worn camera; the other deputies did not activate theirs until later in the incident.

Nieto's driveway slopes down to a yard that faces the east side of his two-bedroom house. While facing the east wall of the house from the yard, the right one-third consists of the master bedroom, which has a door on the east side leading to the yard, and a window on the north side facing Adams Street; the middle one-third consists of the guest bedroom, which has a window (but no door) facing the yard; and the left one-third consists of the living room, which has no doors or windows leading to the yard. A patio cover extends over the living room and guest bedroom portions of the east side of the house.

As the deputies walked toward the east side of the house, the setting sun was partially in their eyes. For safety, the deputies “fann[ed] out” and did not announce their presence. Deputy Crawford went to the right, toward the master bedroom door; Deputy Muli went to the left, to make sure no one was standing around the corner; and Deputy Avedisian stood in a central position behind the other deputies.

Deputy Crawford knocked on the door and stepped away to his left, toward the guest bedroom window. From his central position, Deputy Avedesian could see through this window, into the bedroom and a hallway beyond. Deputy Avedesian saw someone entering the room, so he told Deputy Crawford, “he's coming.” Deputy Avedesian then saw that person “run into the room... holding a handgun.” Deputy Avedesian yelled, “gun, gun, gun.”

The deputies drew their firearms and looked for cover, but did not shoot right away. Deputy Avedesian initially thought the suspect had seen him outside, but the suspect pointed his gun at Deputy Crawford and fired. Deputy Crawford testified, “I was able to see inside that window, I saw a male come from the left and into view... and he pointed a gun at me and fired a round.” At trial, Deputy Crawford identified Nieto as the shooter. About three seconds elapsed between the time Deputy Avedesian yelled “gun, gun, gun” and the time Nieto fired the first shot.

The deputies returned fire and retreated. Deputy Crawford and Deputy Muli each fired several shots and retreated part way up the driveway. Deputy Avedesian fired several shots and retreated behind a shed in Nieto's yard. While Deputy Avedesian was still behind the shed, Nieto fired another shot from inside the house. As Deputies Crawford and Muli provided cover, Deputy Avedesian ran to their position up the driveway.

From their position on the driveway, the three deputies agreed they would have better cover and could retrieve rifles and armor if they further retreated behind their vehicles. The deputies initially regrouped behind the patrol vehicle parked at the entrance to Nieto's driveway. Deputy Avedesian testified they “could still see the house from [their] location up on the street.” Deputy Crawford similarly testified that although there was some shrubbery between the vehicles and house, “[t]here are points where it's a clear view of the house.”

Deputy Muli testified he heard three more shots while the deputies were at their vehicles. Deputy Crawford and Deputy Avedesian heard two. Deputy Crawford saw the final shot hit a trash can on the hill near their vehicle, and Deputy Muli saw it create “a cloud of dust.” Deputy Crawford moved toward the back of his vehicle because he “felt [Nieto] could see [the deputies], and [they] couldn't see him, and he was firing rounds at [them] because he saw where [they] were.”

The deputies held their position until backup arrived. Eventually, a SWAT team extracted Nieto from his house and discovered he had been shot in the hip. Nieto was transported to the hospital and treated.

Investigation

Investigators searched the crime scene and found a Colt Delta Elite 10mm semiautomatic handgun on the bed in the master bedroom. They also found an empty 10mm shell casing in that bedroom, and four more in the kitchen. Forensic analysis determined the shell casings came from the handgun in the master bedroom. DNA recovered from the gun and shell casings matched Nieto's DNA.

A criminalist in the sheriff's crime lab who performs trajectory analysis and crime scene reconstruction analyzed the scene and related evidence. Of the five 10mm shell casings found inside Nieto's house, the analyst was able to account for four gunshots fired from inside. One bullet was recovered from the drywall beneath the guest bedroom window. The analyst also located a likely bullet hole in a support beam for the patio cover just outside the guest bedroom window. One bullet struck the main entry door on the south side of the house (it does not appear any of the deputies were ever in this area). Finally, one bullet was fired through the master bedroom window toward the patrol vehicles at the end of Nieto's driveway and likely struck a trash can along that trajectory (a 10mm bullet was recovered from that area of Nieto's yard). There were additional defects in the guest bedroom window and screen for which the analyst could not account, but which he thought might be attributable to the fifth shell casing recovered inside the house.

Investigators determined from onsite investigation and photographs that at least one of the deputies' patrol vehicles was visible through the master bedroom window. They also determined that the yard through which the deputies entered and retreated was visible from the guest bedroom and kitchen (through the guest bedroom window), even under the lighting conditions that existed during the incident. Many photographs of the scene were admitted as trial exhibits.

A forensic toxicologist testified that lab analysis of Nieto's blood showed levels of THC (the active ingredient in marijuana) “on the higher end” of what she typically sees in her lab. She explained that the potency of marijuana products has increased over time, and that “stronger doses can produce paranoia, visual or auditory hallucinations, or different feelings of anxiety.” Investigators found numerous THC products throughout Nieto's house and car.

Defense Theory

The defense called no witnesses. Defense counsel insinuated during closing argument that the unannounced deputies fired first, and Nieto acted in self-defense and under the duress of having been shot. The trial court instructed the jury regarding self-defense principles.

No self-defense principles are at issue in this appeal.

Charges, Verdicts, and Sentence

Nieto was charged with three counts (one as to each deputy) of assaulting a peace officer with a semiautomatic firearm. (§ 245, subd. (d)(2).) Each count carried the allegation that Nieto personally used (§§ 12022.5, subd. (a), § 12022.53, subd. (b)) and personally and intentionally discharged (§ 12022.53, subd. (c)) a firearm in the commission of the offense.

After deliberating for less than three hours, the jury found Nieto guilty on all counts, and made true findings on all the firearm enhancement allegations.

The trial court sentenced Nieto to a total term of 31 years, eight months.

DISCUSSION

I. Substantial Evidence Nieto Knew He Was Assaulting Peace Officers

To sustain a conviction for assaulting a peace officer with a semiautomatic firearm, the prosecution had to prove that “[w]hen [Nieto] acted, ... he... knew, or reasonably should have known, that the person assaulted was a... peace officer... performing... his... duties.” (CALCRIM No. 860; § 245, subd. (d)(2).) Nieto contends insufficient evidence supports the jury's findings that he knew he was assaulting peace officers, or that he knew there were three of them. We disagree.

“ ‘When considering a challenge to the sufficiency of the evidence..., we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890; see People v. Powell (2018) 5 Cal.5th 921, 944.) “Given this deferential standard of review, a ‘defendant bears an enormous burden in claiming there is insufficient evidence' to support a conviction.” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.)

Substantial evidence supports the jury's findings that Nieto knew, or reasonably should have known, that each of the people he assaulted was a peace officer performing his duties.

First, the circumstances of Nieto's 911 calls support the jury's findings. During Nieto's first 911 call, the operator told Nieto not to hang up because the operator was “going to bring the sheriffs”-i.e., peace officers-“on the line with us.” During Nieto's second 911 call, the operator twice explained that Nieto was speaking to the CHP, a law enforcement agency. Nieto told the operator he “need[ed] both” paramedics and “police”-i.e., peace officers. The operator twice told Nieto not to hang up because she was “going to bring on the sheriffs”-i.e., peace officers. After the call was transferred to the sheriff's operator, Nieto again requested assistance from “paramedics and... the police department”-i.e., peace officers. Finally, the sheriff's operator told Nieto, “I have two deputies”-i.e., peace officers- “en route.” The jury could reasonably infer from this evidence that Nieto knew, or reasonably should have known, that the people who arrived at his property shortly after his 911 calls were peace officers performing their duties.

Contrary to Nieto's suggestion, the passage of time between his 911 calls and the deputies' arrival did not preclude the jury from finding a reasonable person would have known the arriving people were peace officers. The jury could reasonably have inferred that a reasonable person living in a rural area would expect some delay in emergency response times.

Second, the circumstances of the deputies' arrival support the jury's findings. The deputies arrived in marked black-and-white patrol vehicles, which the record shows were visible from the master bedroom of Nieto's house. The fully uniformed deputies approached Nieto's house through his driveway and yard, which the record shows were visible through Nieto's guest bedroom window (including from in the kitchen where four spent shell casings were recovered).

Finally, the circumstances of the shootout support the jury's findings. Nieto ran into the guest bedroom holding a gun and directed his attention toward Deputy Crawford before shooting at him about three seconds later. As the shootout progressed, all three deputies eventually retreated across Nieto's yard, which the record shows was visible from inside Nieto's house. When the deputies further retreated to their patrol vehicles, Nieto fired one more shot in their direction from his master bedroom, from which at least one patrol vehicle was visible.

Thus, substantial evidence supports the jury's findings that Nieto knew, or reasonably should have known, that the people he was assaulting were peace officers performing their duties.

Contrary to Nieto's assertion, substantial evidence also supports the jury's finding “that Nieto knew or reasonably should have known he was directing an assault on three separate peace officers.” (Italics added.) Before the deputies even arrived, the sheriff's operator told Nieto, “I have two deputies en route.” (Italics added.) Additionally, all three fully uniformed deputies approached Nieto's house through his yard, which was visible from the guest bedroom and kitchen (through the guest bedroom window). Deputy Crawford testified Nieto saw him before firing. And although Deputy Avedesian testified he did not believe Nieto saw him when Nieto first entered the guest bedroom, the jury could reasonably have inferred Nieto saw Deputy Avedesian either when he yelled “gun, gun, gun, ” or when he returned fire at Nieto. Finally, all three deputies retreated across Nieto's yard, in view of the guest bedroom and kitchen, after which Nieto continued to fire at them. The jury could rationally have concluded that Nieto knew, or reasonably should have known, that he was firing at three deputies.

II. No Instructional Error Regarding Voluntary Intoxication

The trial court instructed the jury that “[v]oluntary intoxication is not a defense to assault.” (CALCRIM No. 860.) Nieto properly acknowledges this is a correct statement of the law because assault is a general intent crime. (See People v. Williams (2001) 26 Cal.4th 779, 788; § 29.4, subd. (b) [“[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, ” italics added].)

He contends, however, that because there was substantial evidence that he was under the influence of THC when he assaulted the deputies, the trial court erred by failing to instruct the jury sua sponte that it could consider his intoxication in determining whether he knew, or reasonably should have known, that the people he was assaulting were peace officers performing their duties. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1127 (Mendoza) [evidence of voluntary intoxication may be admissible to prove the defendant lacked a required mental state of actual, subjective knowledge].) Alternatively, he contends his trial counsel performed ineffectively by failing to request such an instruction.

These contentions were raised and squarely rejected in People v. Finney (1980) 110 Cal.App.3d 705 (Finney). The defendant in Finney was convicted of assault on a peace officer after he sped away from a traffic stop and ran two law enforcement officers off the road during the ensuing high-speed chase. (Id. at pp. 708-711.) On appeal he argued “he was denied effective representation because his trial counsel failed to raise voluntary intoxication as a defense to” the assault charges. (Id. at p. 712.) The appellate court disagreed, explaining that although intoxication may be relevant to negate a defendant's subjective knowledge that the person he is assaulting is a peace officer, “voluntary intoxication [is] not a defense... where... the facts show that the defendant ‘reasonably should know' that his victims are police officers.” (Ibid.) The court reasoned that the statute's reasonably-should-know provision incorporated an objective standard-what “a sober person would have been aware of”-that renders the defendant's subjective mental state irrelevant. (Id. at p. 714.)

The Finney court concluded that because “the defendant [was] charged alternately both that he knew and reasonably should know that the victims are peace officers, ” and because “the facts... show[ed] that the defendant reasonably should have known his victims were peace officers, ... it was not error to fail to instruct the jury... on the relevance of voluntary intoxication... and the claim of incompetency of counsel relating thereto must fail.” (Finney, supra, 110 Cal.App.3d at p. 714; see People v. Whalen (1973) 33 Cal.App.3d 710, 717 [defendant's contention that voluntary intoxication is relevant to his knowledge that assault victim is a peace officer “runs counter to the explicit language of... section 245, [former] subdivision (b)... that the crime is committed if the person ‘knows or reasonably should know' that his victim is a peace officer”].)

As in Finney, the prosecutor here alternately pleaded both the subjective and objective knowledge standards. The prosecutor also expressly pursued the objective standard during her closing argument. We thus find Finney on point and persuasive.

For example, the prosecutor argued in closing: “I bring up what a reasonable person would know because... you will notice that in many of the elements it uses the term ‘a reasonable person.' What would a reasonable person know, what would a reasonable person do? And so it's important to keep in mind: a reasonable sober person would do what? And the 911 call evidence shows you that a reasonable person would know that these are sheriff's deputies responding to the defendant's residence. [¶]... [¶] Again, I've underlined ‘reasonably should have known.' What this particular element requires is, one, it could be proved to you if the evidence shows you that the defendant himself knew that when he shot at the sheriff's deputies he knew they were sheriff's deputies. But even if you believe that he was too high to realize that those were sheriff's deputies that he was shooting at, this particular element can be proved if a reasonable person in the defendant's shoes would have realized that those were sheriff's deputies that he was shooting at. And I already went over for you based on the 911 call, based on the way that the deputies were dressed, and especially during that last shot when he fired up towards the patrol cars and clearly could see that those were marked police vehicles, he knew that-a reasonable person in the defendant's shoes would know that these were sheriff's deputies.” (Italics added.)

Nieto acknowledges Finney's holding, but argues it is factually distinguishable because the evidence there “clearly showed the defendant reasonably should have known his victims were peace officers....” But regardless of how strong the evidence was in Finney regarding the objective knowledge standard, we have already concluded that substantial evidence supports the jury's finding in that regard as to Nieto.

We are likewise unpersuaded by Nieto's attempt to distinguish Finney on the basis that the record there “did not support an instruction for consideration of the subjective standard.” But the Finney encounter began with the defendant submitting to a traffic stop, and then fleeing and repeatedly ramming marked police vehicles. (Finney, supra, 110 Cal.App.3d at p. 714.) These facts presented a strong case that the defendant subjectively knew the people he was assaulting were peace officers.

Nieto cites a variety of cases finding voluntary intoxication relevant to the required mental states at issue. The cases are inapposite, however, because none involve an objective knowledge component. (See Mendoza, supra, 18 Cal.4th at p. 1133 [“very narrow[ly]” holding that a defendant must subjectively know of an accomplice's target offense to be guilty as an aider and abettor]; People v. Reyes (1997) 52 Cal.App.4th 975, 982-986 [holding that although receiving stolen property is a general intent crime, “with regard to the element of knowledge [that the property was stolen], receiving stolen property is a ‘specific intent crime' ”]; People v. Wiidanen (2011) 201 Cal.App.4th 526, 533 [defendant's intoxication was relevant to whether he made false statements to the police “knowingthe statements were false or intending to mislead”].)

Nieto also cites our court's decision in People v. Moore (2018) 19 Cal.App.5th 889, which held only that vandalism “does not require a specific intent or mental state of the type that evidence of voluntary intoxication can negate.” (Id. at p. 896.) Moore is wholly inapposite.

Nieto also cites People v. Glover (1967) 257 Cal.App.2d 502, which found an involuntary epileptic condition was relevant to the knowledge element of the offense of battery on a peace officer. (Id. at p. 506.) Although that knowledge element contained both a subjective “ ‘knows' ” and an objective “ ‘reasonably should know' ” component, the Glover court did not consider the import of subjective/objective distinction. (See Finney, supra, 110 Cal.App.3d at p. 713 [distinguishing People v. Garcia (1967) 250 Cal.App.2d 15 for finding intoxication relevant to the knowledge element without “consider[ing] the relation of intoxication to the alternate element, that the defendant ‘reasonably should know' that his victim is a peace officer”].) We find the Finney court's analysis of this distinction to be more thorough and, thus, more persuasive.

Finally, many leading California treatises have echoed the Finney court's holding that voluntary intoxication is irrelevant to the objective knowledge standard. (See 1 Witkin, Cal. Crim. Law 4th Crimes Against the Person § 69 (2021) Assault on Peace Officer or Firefighter [because section 245 “authorizes conviction of a defendant on a showing... that defendant ‘reasonably should know' the identity of the officers[, ]... lack of awareness of the officers' identities is immaterial where it is due to voluntary intoxication, and a sober person would have been aware of their identities”]; 17A Cal. Jur. 3d Criminal Law: Crimes Against the Person § 521 [“Clearly, the voluntary intoxication of the accused is not a defense in a prosecution for assault with a deadly weapon on a peace officer, ” italics added].)

Because the prosecution charged Nieto with assault under both the subjective and objective knowledge components, and because substantial evidence supports that a reasonable sober person in Nieto's position would have known that the people he was assaulting were peace officers performing their duties, the trial court had no duty to instruct the jury sua sponte regarding voluntary intoxication. Further, because this is well-established law, Nieto's trial counsel was not ineffective for failing to request an instruction on the issue. (See Finney, supra, 110 Cal.App.3d at p. 714; People v. Dennis (1998) 17 Cal.4th 468, 541 [“claim of ineffective assistance of counsel must fail” when premised on counsel's failure to request an instruction to which the “defendant was not entitled”]; People v. Stringer (2019) 41 Cal.App.5th 974, 990.)

III. No Prejudicial Sentencing Error

Nieto contends the trial court abused its discretion in imposing consecutive sentences because the court gave undue weight to the aggravating circumstance that Nieto fired multiple shots at multiple victims, and failed to give due weight to the mitigating circumstance that Nieto had no criminal record. He further contends the court erred by imposing a 20-year firearm enhancement because the court misunderstood the scope of its discretion to impose a lesser enhancement.

We conclude the trial court acted within its discretion in imposing consecutive sentences. And although the trial court apparently misunderstood the scope of its discretion regarding firearm enhancements, the error was harmless because the court clearly indicated it would have imposed the greater enhancement in any event.

A. Background

The probation officer recommended in her report that the court sentence Nieto to 45 years in prison. She noted Nieto's lack of criminal history constituted a mitigating factor and supported concurrent sentencing. However, she found this was outweighed by the aggravating factors that Nieto's offense reflected planning (asking deputies for help and then ambushing them) (Cal. Rules of Court, rule 4.421(a)(8)); Nieto engaged in violent conduct indicating a danger to society (rule 4.421(b)(1)); and Nieto was under the influence of marijuana during the offense (rule 4.408(a)).

The 45 years consisted of the seven-year midterm on count 1 (assaulting Deputy Avedesian); two years, four months (one-third of the seven-year midterm) on count 2 (assaulting Deputy Crawford); two years, four months on count 3 (assaulting Deputy Muli); 20 years for the section 12022.53, subdivision (c) firearm enhancement attached to count 1; six years, eight months (one-third of 20 years) for the same enhancement attached to count 2; and six years, eight months for the same enhancement attached to count 3.

All further rule references are to the California Rules of Court.

The prosecutor requested in her sentencing brief that the court sentence Nieto to 31 years, eight months. She recommended consecutive sentences, to acknowledge the harm inflicted on each deputy.

This term consisted of the seven-year midterm on count 1; two years, four months on count 2; two years, four months on count 3; and 20 years for the section 12022.53, subdivision (c) firearm enhancement attached to count 1. The prosecutor recommended staying the remaining firearm enhancements.

In aggravation, the prosecutor cited that Nieto's victims were particularly vulnerable in that he ambushed them when they had no cover (rule 4.421(a)(3)), and the offense indicated planning (rule 4.428(a)(8)). In mitigation, the prosecutor recognized Nieto's lack of criminal record (rule 4.423(b)(1)) and his voluntary intoxication (rule 4.423(a)(4)).

Nieto argued in his sentencing brief that because his “actions were totally aberrant to his prior life's actions, ” he deserved to be “treated as a first offender with no aggravating factors.” Accordingly, he requested that the court impose concurrent sentences and strike all the firearm enhancements. Nieto submitted 14 reference letters from family, friends, and coworkers.

At the outset of the sentencing hearing, the trial court advised that it had read the probation officer's report, the parties' sentencing briefs, and related attachments. The court stated there was “no doubt in [its] mind that... what occurred... is [aberrant] to [Nieto]'s character and [aberrant] to everything he's done in the past.” But there was “also no doubt in [the court's] mind” that Nieto shot at deputies who were responding to help him, and that “there were enough shots fired that would encompass all three of the deputies.”

The court stated it recognized the rationale and legal basis supporting the probation officer's 45-year recommendation, but found the prosecutor's “middle of the road” recommendation more “apt.” Accordingly, the trial court sentenced Nieto to 31 years 8 months (as specified in fn. 8, ante).

As for selecting the 20-year firearm enhancement under section 12022.53, subdivision (c), the court explained: “The law requires that when there are multiple enhancements, I think you're obligated under the law to choose the greater. Even if I weren't obligated, because of the multiple shots and because of the fact I'm going to end up staying the enhancements on each of the consecutive counts, I'll impose the term of 20 years.”

After the court pronounced sentence, Nieto asked the court to “please consider the letters of reference, ” his “accomplishments, ” and his “clean background.” The court responded that it “did read each of the letters” and did “agree that... the conduct that occurred... is totally out of character” for Nieto. The court explained, “If I had thought that you were in your right mind when you intended to do this, the probation department's recommendation of 45 years is right where I would be sitting.... [T]he good part of your character is what reduced it from 45 down.”

B. Relevant Legal Principles

Trial courts have broad discretion in deciding whether to impose consecutive sentences (People v. Shaw (2004) 122 Cal.App.4th 453, 458) and strike firearm enhancements (People v. Pearson (2019) 38 Cal.App.5th 112, 117 (Pearson)).

The California Rules of Court identify certain factors “relating to the crimes” that courts can consider when deciding whether to impose consecutive sentences. (Rule 4.425(a)(1)-(3) [whether the “crimes and their objectives were predominantly independent of each other, ” “involved separate acts of violence, ” or “were committed at different times or separate places”].) However, the listed factors are not exhaustive, and the sentencing court can use additional criteria “reasonably related to the decision being made, ” provided “[a]ny such additional criteria [are]... stated on the record.” (Rule 4.408.) This includes “the naming of separate victims in separate counts.” (People v. Caesar (2008) 167 Cal.App.4th 1050, 1061 (Caesar); see People v. Calhoun (2007) 40 Cal.4th 398, 408.) “Only one criterion or factor in aggravation is necessary to support a consecutive sentence.” (People v. Davis (1995) 10 Cal.4th 463, 552 (Davis); see People v. King (2010) 183 Cal.App.4th 1281, 1323 (King).)

“The factors that the trial court must consider when determining whether to strike a firearm enhancement... are the same factors the trial court must consider when handing down a sentence in the first instance.” (Pearson, supra, 38 Cal.App.5th at p. 117.) These include the general objectives in sentencing, circumstances in aggravation, and circumstances in mitigation. (Ibid.)

“ ‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms.”' ” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582 (Avalos).) “ ‘[U]nless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors.' ” (King, supra, 183 Cal.App.4th at p. 1322; see People v. Myers (1999) 69 Cal.App.4th 305, 310 [“the fact that the court focused its explanatory comments on the violence and potential violence of appellant's crimes does not mean that it considered only that factor”]; Avalos, at p. 1583; People v. Sperling (2017) 12 Cal.App.5th 1094, 1102].)

We review a sentencing court's discretionary decisions for an abuse of discretion. (Avalos, supra, 47 Cal.App.4th at p. 1582; see King, supra, 183 Cal.App.4th at p. 1323.) “ ‘[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' ” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) “The party attacking the sentence must show the sentencing decision was irrational or arbitrary and if it fails to do so, ‘ “the trial court is presumed to have acted to achieve legitimate sentencing objectives.”' ” (King, supra, 183 Cal.App.4th at p. 1323.) We do not reweigh the sentencing court's balancing of factors. (People v. Scott (1994) 9 Cal.4th 331, 355 (Scott); People v. Jordan (1986) 42 Cal.3d 308, 317 (Jordan) [reviewing court “erred when it reweighed the circumstances in mitigation rather than limiting its review to whether the sentencing court abused its statutory discretion”].)

A sentencing court abuses its discretion when it erroneously believes it lacks discretion that it, in fact, has. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez); see People v. Windfield (2021) 59 Cal.App.5th 496, 529-530.) In such a circumstance, “the appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]' that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.' ” (Gutierrez, at p. 1391; see Windfield, at pp. 529-530.)

C. Analysis

We discern no abuse of discretion in the trial court's decision to impose consecutive sentences. The appellate record shows that the trial court considered pertinent aggravating and mitigating circumstances: the court read the probation officer's report, the prosecutor's sentencing brief, and Nieto's sentencing brief and character-reference letters. In imposing consecutive sentences, the court specifically cited the fact there were multiple victims-“there were enough shots fired that would encompass all three of the deputies.” This, standing alone, would suffice. (See Caesar, supra, 167 Cal.App.4th at p. 1061; Davis, supra, 10 Cal.4th at p. 552.)

But the probation officer and prosecutor also cited additional aggravating circumstances (engaging in violent conduct posing a serious danger to society, particularly vulnerable victims, offense reflected planning, and Nieto's intoxication). Because nothing in the record suggests otherwise, we presume the court also considered these factors. (See King, supra, 183 Cal.App.4th at p. 1322.)

Nieto contends the trial court failed to give due weight to his mitigating circumstances, namely his lack of criminal history. However, the trial court expressly stated that it considered Nieto's mitigating circumstances and, indeed, relied on them in rejecting the probation officer's 45-year recommendation in favor of the prosecutor's “middle of the road” recommendation.

Nieto is essentially inviting us to reweigh the sentencing factors, which we cannot do. (Scott, supra, 9 Cal.4th at p. 355; Jordan, supra, 42 Cal.3d at p. 317.) We are limited to determining whether the selected sentence “is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) On the record before us, we conclude it is not.

Next, Nieto contends the trial court's comments during the sentencing hearing-that “[t]he law requires” the court “to choose the greater” of available firearm enhancements-indicate that the court erroneously believed it lacked the discretion to strike the 20-year enhancement under section 12022.53, subdivision (c), and instead impose a 10-year enhancement under subdivision (b) of that provision, or a three-, four-, or 10-year enhancement under section 12022.5, subdivision (a). We agree the comment reflects a misunderstanding of the law. When, as here, multiple firearm enhancements are pleaded and proved, section 12022.53, subdivision (h) grants the sentencing court the discretion, in the interests of justice, to strike a greater enhancement and impose a lesser enhancement instead. (See People v. Tirado (2019) 38 Cal.App.5th 637, 644, review granted (Nov. 13, 2019, No. S257658.)

The California Supreme Court granted review in Tirado to determine the scope of a sentencing court's discretion to substitute a lesser firearm enhancement that was not pleaded and proved. (See <https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2295644&doc_no=S257658&request_token=NiIwLSEmTkw5W0BNSCI9UEJIUEg0UDxTJiMuXz9RMCAgCg%3D%3D> [as of July 26, 2021], archived at <https://perma.cc/55AB-K72S>.

But we disagree that the trial court's misunderstanding requires a remand for resentencing. The trial court expressly stated that “[e]ven if [it] weren't obligated” to impose the 20-year enhancement, it would have done so “because of the multiple shots and because of the fact [the court is] going to end up staying the enhancements on each of the consecutive counts.” Thus, “the record ‘clearly indicate[s]' that the trial court would have reached the same conclusion ‘even if it had been aware that it had such discretion.' ” (Gutierrez, supra, 58 Cal.4th at p. 1391; see People v. Franks (2019) 35 Cal.App.5th 883, 893 [record affirmatively showed trial court would not exercise its discretion to strike prior serious felony enhancement when it said, “ ‘I will not exercise my discretion, which I might have, to strike the punishment of either the strike prior or the 667(a) five-year prior that is to be imposed' ”].)

IV. Pitchess Review

The final issue Nieto raises on appeal is his request that we independently review certain of Deputy Muli's confidential personnel records that were the subject of a prosecution Pitchess motion.

A. Background

While preparing for trial, the prosecutor learned that a suspect whom Deputy Muli had arrested in 2016 had since filed a civil lawsuit against Deputy Muli (and other deputies and public entities) alleging he used excessive force in making the arrest. Based on the existence of the civil lawsuit, the prosecutor suspected the sheriff's department may have conducted an internal investigation of the incident. Accordingly, the prosecutor filed a Pitchess motion so the court could determine whether Deputy Muli's personnel records contained any potentially exculpatory material regarding the 2016 arrest to disclose to Nieto under Brady v. Maryland (1963) 373 U.S. 83 (Brady).

The prosecutor attached to her Pitchess motion a copy of the civil complaint regarding the 2016 arrest. The complaint identified the 2016 arrestee, provided his contact information through counsel, and described in detail the alleged incident that gave rise to the lawsuit. The prosecutor also attached the arrest reports prepared by each of the deputies involved in the 2016 arrest. The prosecutor served Nieto with a copy of her moving papers.

The sheriff's department opposed the Pitchess motion and served a copy of its opposition on Nieto.

Nieto did not join or oppose the prosecutor's motion, or bring a Pitchess motion of his own.

The trial court granted the motion and ordered the in camera inspection of any materials in Deputy Muli's personnel file regarding the 2016 arrest that would reflect on his use of excessive force or false reporting.

The sheriff's custodian of records testified under oath during a sealed, in camera proceeding that he had reviewed Deputy Muli's personnel records, including internal affairs files and electronic databases where information regarding the 2016 arrest would be found, and determined no responsive materials existed in these files. Although the custodian described the nature of his search, it appears he did not bring any files to the hearing.

The court accepted the custodian's sworn testimony and found “there are no discoverable materials as a result of the Pitchess motion.”

A. Analysis

We need not independently review Deputy Muli's confidential personnel records or determine whether the trial court erred in not personally inspecting them, because the record shows that any Pitchess error would be harmless.

The prosecutor's Pitchess motion was narrow and detailed: It sought information about a single incident, and attached records (including detailed arrest reports) identifying the complainant, providing his contact information, and describing the incident in detail. This is essentially the same information Nieto would have obtained had he brought his own successful Pitchess motion regarding the 2016 arrest. (See Galindo v. Superior Court (2010) 50 Cal.4th 1, 12 [“information disclosed to the defense will be limited to names and contact information for persons who have on prior occasions either witnessed or filed complaints of misconduct by the officer who is the subject of the Pitchess discovery motion”]; People v. Prince (2007) 40 Cal.4th 1179, 1285 [same]; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1062-1063 [“ ‘[C]ourts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files”]; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 [“The trial court may not disclose... ‘conclusions of any officer' who investigates a citizen complaint of police misconduct”]; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 715 [“If the prosecution informs the defense of what it knows regarding information in confidential personnel records, and the defense can seek that information itself, no evidence has been suppressed [under Brady]. [¶] ‘[T]he prosecutor had no constitutional duty to conduct defendant's investigation for him.' ”].)

Because the prosecutor's motion, itself, provided Nieto essentially all the information to which he would have been entitled under a successful Pitchess motion, he cannot establish any prejudicial error arising from the Pitchess proceeding. (See People v. Gaines (2009) 46 Cal.4th 172, 182 [“To obtain relief, ... a defendant who has established that the trial court erred in denying Pitchess discovery must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed.”].)

We thus find it unnecessary to independently review the trial court's sealed Pitchess proceedings.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P. J., O'ROURKE, J.


Summaries of

People v. Nieto

California Court of Appeals, Fourth District, First Division
Jul 26, 2021
No. D077624 (Cal. Ct. App. Jul. 26, 2021)
Case details for

People v. Nieto

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE NIETO, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 26, 2021

Citations

No. D077624 (Cal. Ct. App. Jul. 26, 2021)