Opinion
D072700
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO LEYVA CORTEZ et al., Defendants and Appellants.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant Eduardo Leyva Cortez. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant Jose Tito Garcia. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Randall Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD269680) APPEALS from judgments of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant Eduardo Leyva Cortez. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant Jose Tito Garcia. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Randall Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Eduardo Leyva Cortez of two counts of vandalism over $400. (Pen. Code, § 594. subds. (a), (b)(1).) Cortez admitted he was released on bail at the time of the offenses. (§ 12022.1, subd. (b).) The trial court sentenced him to a total term of four years eight months, suspended execution of the concluding two years and four months, and granted mandatory supervision for that period. (§ 1170, subd. (h)(5).)
Further statutory references are to the Penal Code unless otherwise specified.
The same jury convicted Jose Tito Garcia of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), battery with serious bodily injury (§ 243, subd. (d)), and two counts of vandalism over $400 (§ 594, subds. (a), (b)(1)). In connection with the assault conviction, it found that he had personally inflicted great bodily injury on a person other than an accomplice. (§ 12022.7, subd. (a).) In bifurcated proceedings, the trial court found that Garcia had committed a prior serious felony offense that was also a "strike" prior for purposes of the "Three Strikes" law. (§ 667, subds. (a), (c).) The trial court sentenced him to a total term of 14 years, consisting of the middle term of three years for the assault conviction, doubled under section 667, subdivision (e)(1) (or six years), three years for the great bodily injury sentencing enhancement, and five years for Garcia's prior serious felony conviction. It also imposed the upper term of three years for each of Garcia's vandalism convictions, to be served concurrently. For the battery conviction, the court sentenced Garcia to the middle term of three years, also doubled to six years, but it stayed execution of the sentence under section 654.
Cortez and Garcia appeal. Cortez contends the evidence did not support one of his vandalism convictions. Garcia contends the trial court abused its discretion by declining to strike his prior "strike" conviction under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We disagree with these contentions and affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
The victim, who was 20 weeks pregnant, lived with her fiancé in a garage in San Diego, California. They owned two cars, a white Honda and a purple Mazda. On November 13, 2016, both cars were parked by the curb on the street. The Mazda was parked in front of the Honda. Sometime in the evening, Garcia and his roommate Cortez drove over in Garcia's Range Rover. They were having some sort of feud with the victim's fiancé. When they arrived, Garcia crashed the Range Rover into the Honda and then into the Mazda.
The victim was in the garage with her fiancé when they heard the crash. Cortez and Garcia got out of the Range Rover and began arguing with the victim's fiancé. The victim went outside, and Cortez started jumping on the Honda and breaking its windows. Garcia and the victim's fiancé were yelling at each other. The victim grabbed a golf club and pepper spray and confronted Garcia and Cortez. She sprayed Garcia with pepper spray and jumped over a fence. She started swinging her golf club at Garcia and his Range Rover. Cortez was still trying to break the windows and doors of the Honda.
The victim was knocked out or blacked out. When she awoke, Garcia and Cortez were standing over her. Garcia was kicking her. The victim crawled away and called police. Sometime during the attack, the victim's fiancé disappeared. Garcia and Cortez drove away in the Range Rover.
Police arrived and interviewed the victim. She appeared to be in a lot of pain and was going in and out of consciousness. She had suffered a broken nose, abrasions, and extensive bruising all over her body. Her pregnancy was not affected. Police impounded the Mazda because it was about four or five feet away from the curb and might be a traffic hazard.
The victim paid $500 to repair the front and rear windshields on the Honda. The rear end was also damaged, but the victim did not repair it. The Mazda's rear bumper had been ripped off. Police later found it a couple blocks away in the street. The victim believed the Mazda was totaled.
At trial, the victim said there were a lot of things she did not remember about the attack. For example, she could not remember how the Mazda got damaged. But she testified it was damaged, and it had not been moved throughout the attack. Police did not find any evidence of a traffic collision where the bumper was found a couple blocks away. A police officer opined that the bumper likely was stuck in the front of another vehicle and was dragged there. The victim's statements to police at the scene were introduced into evidence. In those statements, she told police that Garcia crashed his Range Rover into the Honda first and then into the Mazda.
Garcia testified in his own defense. He said he and Cortez stopped to talk to the victim's fiancé about the white Honda and some other property, which were apparently the subject of some disputes. He said he accidently bumped the back of the Honda when he parked. He claimed the victim and her fiancé then attacked him. According to Garcia, the victim's fiancé got in the Mazda and tried to hit him and Cortez, but he struck the Honda instead. He said the victim slipped and fell as she tried to hit him with a golf club. Garcia denied hitting or kicking the victim. Garcia testified that, as he and Cortez drove away, the victim's fiancé stopped short in front of them, and they crashed into the back of the Mazda. The crash knocked off the bumper.
DISCUSSION
I
Sufficiency of the Evidence
Cortez contends the evidence did not support his conviction for vandalism of the purple Mazda. "Our task is clear. 'On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses 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.' " (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).)
"In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
" 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' " (Cravens, supra, 53 Cal.4th at pp. 507-508.)
"Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Our review of the record reveals sufficient evidence to support Cortez's conviction based on the theory that he aided and abetted Garcia's vandalism of the purple Mazda, which occurred when Garcia crashed his Range Rover into the Mazda. Although the victim did not remember that crash when she testified at trial, her statements at the time of the attack were admitted into evidence. Those statements provided a sufficient basis for the jury to conclude that Garcia crashed into the Mazda as well as the Honda. Cortez argues that it would have been "virtually impossible" for Garcia to crash into the Mazda because it was parked directly in front of the Honda. We disagree that it would have been physically impossible, based on this record, for Garcia to have crashed into the Mazda. Although a police officer testified it was parked "directly in front," that testimony does not foreclose the possibility that sufficient space remained for the Mazda to be rear-ended. And, since the Mazda was parked four or five feet away from the curb, it is reasonable to conclude the crash could still have occurred even if the space between the cars were relatively small (because the rear end of the Mazda would have stuck out into the street). Under these circumstances, we cannot say the victim's statements about the Mazda crash were physically impossible or inherently improbable. (See People v. Ennis (2010) 190 Cal.App.4th 721, 729.)
As for aiding and abetting, "a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (People v. Beeman (1984) 35 Cal.3d 547, 561; accord, People v. Avila (2006) 38 Cal.4th 491, 564.) "Evidentiary considerations which are probative of whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime." (People v. Jones (1980) 108 Cal.App.3d 9, 15.) However, mere presence at the scene of the crime and failure to take steps to prevent the crime do not, standing alone, establish aider and abettor liability. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287.)
Here, the jury could reasonably find that Cortez aided and abetted Garcia's vandalism of the Mazda. Cortez and Garcia were roommates. Cortez was with Garcia in the Range Rover when it crashed into both the Honda and the Mazda. After the crashes, Cortez was not surprised or alarmed. Instead, he jumped out of the Range Rover and began to break the Honda's windows, thereby continuing the vandalism that Garcia started. He also stood by Garcia's side as Garcia brutally beat the victim, and subsequently fled with him. Based on these facts, the jury could reasonably infer that Cortez knew Garcia intended to vandalize the victim's cars (including the Mazda), that Cortez intended to promote or encourage Garcia in that effort, and that Cortez did in fact promote or encourage the vandalism.
Cortez points out that there is no evidence of what he did or said prior to the crash. But such direct evidence is unnecessary. "[I]t is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed 'on the spur of the moment,' that is, as instantaneously as the criminal act itself." (People v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.) Here, it can reasonably be inferred based on Cortez's subsequent vandalism of the Honda, and the other facts outlined above, that he aided and abetted Garcia's vandalism of the Mazda as well. It is not speculation, as Cortez claims. It is a reasonable inference based on the evidence. For these reasons, the evidence supports Cortez's conviction.
II
Request to Strike Garcia's "Strike" Prior
Garcia contends the trial court abused its discretion by not striking his prior serious felony conviction ("strike" prior) under section 1385 and Romero, supra, 13 Cal.4th 497. In 1998, Garcia pleaded guilty and was convicted of first degree burglary. (§§ 459, 460, subd. (a).) Garcia was 17 years old at the time of the offense. In connection with his plea, he admitted he entered an inhabited residence with the intent to commit a felony assault. Based on the contemporaneous probation report, it appears that Garcia was chasing several rival gang members, who had taken refuge in a stranger's house. Garcia attempted to open the door to the house. He was carrying a wooden fence post or piece in his hand at the time. His fellow gang members began throwing bottles at the home's windows, and then they all ran away. He was granted probation, but it was later revoked based on multiple probation violations. He was sentenced to two years in prison. In 1999, Garcia pleaded guilty to a violation of former Health and Safety Code section 11359, possession of marijuana for sale, and was sentenced to two years eight months in prison for that offense. He was paroled in 2001 and discharged in 2004. He had not reoffended since then.
At the sentencing hearing here, the trial court heard argument from counsel regarding whether to strike the burglary conviction for purposes of sentencing. In its ruling, the court acknowledged it had the power to strike the conviction. It referenced Romero and other authorities describing the court's discretion. It found, however, that Garcia was not outside the spirit of the Three Strikes law. The court explained, "The new offense is a violent offense, it is a serious felony, it is a strike, and for all of those reasons, you know—if you came here on a possession for sale of methamphetamine, you came here on a commercial burglary, you came here on something non-violent, I probably would be striking the strike. [¶] It's 20 years old. Basically, 17 years of law-abiding activity. You've done well in those interim 17 years. This incident is outside of what your most recent past has been, but it is violent and it is something that I—I cannot and I will not overlook, and so the Romero motion is denied."
We review the court's ruling for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[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." ' [Citation.] Second, 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.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
"[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
"Thus, the three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case." (Carmony, supra, 33 Cal.4th at p. 378.)
Garcia has not shown the court abused its discretion here. He does not claim the court was not aware of its discretion or that it considered an impermissible factor in declining to strike the prior conviction. Instead, he argues that the court placed "[t]oo [m]uch [w]eight" on one factor (the circumstances of the current offense) and did not give enough weight to the remaining factors (the circumstances of the prior conviction and the defendant's background, character, and prospects). But this type of reweighing is expressly prohibited by our standard of review. Where a trial court refuses to strike a prior conviction "based on factors allowed under the law and fully supported by the record," we cannot reverse based simply on a "disagree[ment] with the court's weighing of these factors." (Carmony, supra, 33 Cal.4th at p. 379; accord, People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
We likewise disagree that the court's reliance on the nature and circumstances of the present conviction resulted in an irrational, arbitrary, or absurd ruling. The present conviction was unusually violent: Garcia brutally beat a pregnant woman, including kicking her while she was on the ground after she was knocked out or blacked out. The victim suffered a broken nose, abrasions, and extensive bruising all over her body. While the victim acted aggressively in defending her property, Garcia's actions went far beyond simply restraining her or preventing injury to himself.
The remaining factors are mixed. On the one hand, Garcia's prior offense occurred when he was 17 years old, and it did not result in physical injury to any victims. On the other hand, the offense stemmed from a violent melee involving two rival gangs that spilled over to affect innocent bystanders. After Garcia's conviction, he violated probation multiple times. Two years later, he was convicted of another felony. Since that time, however, Garcia has "done well," as the trial court acknowledged. Garcia was employed, he rented an apartment, and there is no evidence he committed any crimes after his release from prison in 2001 and prior to the current offenses.
Considering all the factors, we conclude the trial court acted well within its discretion by declining to strike Garcia's prior conviction. The factors do not point so strongly toward striking Garcia's conviction as to make the court's ruling here irrational, arbitrary or absurd. The trial court could reasonably conclude that Garcia's past conduct and his current offense show that he does not fall outside the spirit of the Three Strikes law.
Garcia argues, "Had the court looked beyond the current offense, it would have reached the only rational conclusion possible and granted the Romero motion." But the nature and circumstances of the current offense were a proper factor for the trial court to consider. (Williams, supra, 17 Cal.4th at p. 161.) We must examine the court's ruling in light of all of the factors, including the current offense. Considering all the factors, the court did not abuse its discretion. Garcia also argues that the trial court gave "no weight" to Garcia's years of crime-free living. But the court expressly acknowledged this background. It simply found that other concerns outweighed this factor. As we have explained, the court could reasonably reach this conclusion in the proper exercise of its discretion.
Relying on In re Lynch (1972) 8 Cal.3d 410, Garcia argues his sentence of 14 years is unusually harsh and unjust. Lynch involved a challenge to an indeterminate sentence based on the California Constitution's prohibition on cruel and unusual punishment. (Id. at p. 413.) Garcia has not attempted to show his sentence is unconstitutional under the circumstances here. Moreover, we find nothing unusually harsh or unjust about Garcia's total sentence that would mandate striking his prior conviction. The appropriate sentence for Garcia's current convictions is an issue for the Legislature, in the first instance, and the trial court, in the next. Our role here is limited to reviewing the trial court's Romero ruling for abuse of discretion. For the reasons already stated, Garcia has not shown the court abused its discretion. --------
DISPOSITION
The judgments are affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. DATO, J.