Opinion
A158097
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. NERY ISRAEL ESTRADA-MARGOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-707142-1)
Defendant and appellant Nery Israel Estrada-Margos (Appellant) appeals from the judgment entered following his plea of no contest to first degree murder, assault with a deadly weapon, and injury to a cohabitant. He contends the trial court erred in failing to stay the punishment on the assault charge under Penal Code section 654 and in imposing fines and assessments. We affirm.
All undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
In February 2018, the Sonoma County District Attorney filed an information charging Appellant with first-degree murder (§ 187, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and injury to a cohabitant (§ 273.5, subd. (a)). As to the assault count, the information alleged great bodily injury involving domestic violence (§ 12022.7, subd. (e)).
In June 2019, Appellant pled no contest to the charges and admitted the great bodily injury enhancement.
In August 2019, the trial court sentenced Appellant to 25 years to life in prison for the first-degree murder conviction. For the assault conviction, the court imposed a consecutive term of three years, plus five years for the great bodily injury enhancement. The court denied Appellant's request to stay the sentence for the assault conviction under section 654. Finally, the court imposed a consecutive one-year term for the cohabitant abuse conviction. The total sentence was 25 years to life plus nine years.
Additionally, the trial court ordered Appellant to pay a $10,000 restitution fine (§ 1202.4), $120 in court operations assessments (Gov. Code, § 70373), and $90 in criminal conviction assessments (§ 1465.8). The court also ordered Appellant to pay $5,284.60 in victim restitution and $7,500 to the Victim Compensation Board. Appellant objected to the imposition of the fines and assessments based on his inability to pay them, and the court stayed the payment of the $10,000 restitution fine for five years.
The trial court also imposed and suspended a $10,000 fine under section 1202.45.
This appeal followed.
FACTUAL BACKGROUND
The background facts are taken from the probation office's presentence report.
In August 2017, Appellant and the victim, Veronica Cabrera, lived together in Cabrera's apartment. They had been dating for about nine months. On August 2, Cabrera reported to the police that, at the end of July, Appellant had twice punched her in the face. They had been arguing because Appellant believed she had been unfaithful. Cabrera had bruises on the right side of her face and jaw.
On the evening of August 17, 2017, Appellant and Cabrera argued about Cabrera's infidelity. The following morning, Appellant grabbed her by the hair and hit her once "as hard as [he] could" with a dumbbell.
Cabrera was motionless, her eyes were closed, and she was bleeding heavily. Appellant said he wiped Cabrera's face with water and wrote an apology in a notebook. In his apology, he admitted he killed Cabrera and he wrote that Cabrera had died at 5:00 a.m. after having suffered for three minutes. Appellant also wrote "I love you" on Cabrera's arm with a marker and covered her body with a blanket.
Appellant went to the police station, admitted what he had done, and asked for medical assistance for Cabrera. Police officers went to Cabrera's apartment and found her dead body in a bedroom. There was a three-pound dumbbell with blood stains on the floor.
An autopsy identified "multiple blunt force injuries of the head and neck." The Sonoma County Coroner's Office determined the blows to Cabrera's head likely rendered her unconscious, but were not severe enough to cause her death. The pathologist found the cause of death was "Homicidal Asphyxia." The asphyxiation could have been " 'due to smothering (occlusion of the nose and mouth), mechanical pressure on the body, and/or strangulation.' "
DISCUSSION
I. Substantial Evidence Supports the Section 654 Determination
Appellant argues the trial court erred in failing to stay his sentence for assault with a deadly weapon under section 654. We reject the claim.
Section 654 prohibits multiple punishments for a single act even if the act violates more than one statute and constitutes more than one crime. (People v. Mesa (2012) 54 Cal.4th 191, 195.) It states, in relevant part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision . . . ." (§ 654, subd. (a).) The purpose of the statute "is to ensure that a defendant's punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.)
" ' " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " ' [Citation.] Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense." (People v. Jackson (2016) 1 Cal.5th 269, 354 (Jackson).) The trial court's "determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
In her sentencing brief below, the prosecutor argued Appellant's act in assaulting Cabrera with the dumbbell was distinct from and done with a different objective than his later act of murdering her by homicidal asphyxia. The prosecutor relied on the autopsy report stating that the assault with the dumbbell had not killed Cabrera and that the death was accomplished via smothering, mechanical pressure on the body, or strangulation. Defense counsel argued the assault and murder were part of a single indivisible course of conduct for which Appellant had a single intent, pointing to Appellant's statement he had hit Cabrera as hard as he could with the dumbbell.
In ruling section 654 was inapplicable at the sentencing hearing, the trial court observed, "The information that we have indicates that the strike with the dumbbell was not the fatal strike . . . . And I think a reasonable inference can be drawn from the information we have that the asphyxiation was a separate act and most likely carried a separate intent." The court acknowledged the uncertainty regarding "precisely" by what "method" the asphyxiation was accomplished, but "the homicidal asphyxiation [was] a separate act, different from the strike with the dumbbell."
On appeal, Appellant does not dispute there was evidence Cabrera was not killed by the assault with a dumbbell and the cause of death was asphyxiation by undetermined means. Instead, Appellant argues there was "insufficient evidence to show that [A]ppellant harbored a separate intent or objective when" he asphyxiated Cabrera at some point after hitting her with a dumbbell. Appellant continues, "The evidence fails to show that [A]ppellant merely intended to assault Cabrera when he hit her with the dumbbell, and then separately decided to kill her. Instead, [A]ppellant's statements and the evidence both indicate [A]ppellant had a single intent, to harm or kill Cabrera, and his actions were all part and parcel of that single objective and course of conduct."
The trial court's finding under section 654 is supported by substantial evidence. We observe it is unclear when the asphyxiation occurred. The trial court appeared to assume it occurred after Appellant wrote his apology, and Appellant assumes it occurred shortly after he hit Cabrera with the dumbbell. However, even assuming the asphyxiation occurred immediately after the assault, that would not obligate the trial court to conclude Appellant harbored a single intent. (Jackson, supra, 1 Cal.5th at p. 269 [" 'The temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective.' "].)
The autopsy report supported an inference that Appellant hit Cabrera with a dumbbell and then sometime after separately applied force to asphyxiate Cabrera. (Jackson, supra, 1 Cal.5th at p. 354.) Further, the trial court could reasonably infer Appellant harbored different intents in each act. The trial court could reasonably infer that Appellant acted out of anger and with intent to harm Cabrera when he struck her with the dumbbell, but without intent to kill. On the other hand, the trial court could reasonably infer that when Appellant subsequently asphyxiated Cabrera while she was incapacitated, he intended to kill her.
The cases Appellant cites are inapposite. Those that include violent conduct comparable to that in the present case involve an indivisible course of conduct, while in the present case the evidence supported an inference the assault and the asphyxiation were independent acts. (Cf. People v. Martinez (1966) 239 Cal.App.2d 161, 165 [continuous group attack]; People v. Meriweather (1968) 263 Cal.App.2d 559, 562 [uninterrupted series of three gunshots].)
II. Appellant Has Not Shown Error as to Fines and Assessments
During the sentencing hearing, the trial court ordered Appellant to pay a $10,000 restitution fine (§ 1202.4), $90 in court operations assessments (§ 1465.8), and $120 in criminal conviction assessments (Gov. Code, § 70373). In addition, the court ordered Appellant to pay $5,284.60 in victim restitution and $7,500 to the Victim Compensation Board.
At the time of imposition of the fines and assessments, the trial court asked, "Counsel wish to be heard on ability to pay?" Appellant's counsel stated, "in light of the Court's indeterminate sentencing, I believe he doesn't have the ability to pay." Respondent's counsel disagreed, observing that Appellant would be "allowed to earn minimal, nominal income while serving a sentence." The trial court stated it would stay payment on the restitution fines for five years so that victim restitution and payments to the Victim Compensation Board could be paid first out of any earnings in prison. Appellant did not object to that ruling, offer any evidence on the issue of ability to pay, or request an evidentiary hearing on the issue.
Appellant argues "[t]he court imposed the fines, fees, and assessments without first determining whether [A]ppellant had the ability to pay each fine, fee, and assessment." To the contrary, the trial court impliedly determined that Appellant did have the ability to pay if the $10,000 restitution fine were stayed for five years. Appellant asserts the trial court "indirectly found that [A]ppellant did not currently have the ability to pay the maximum restitution fine given the direct victim restitution order and the other fees imposed." However, " 'Ability to pay does not necessarily require existing employment or cash on hand.' [Citation.] '[I]n determining whether a defendant has the ability to pay a restitution fine, the court is not limited to considering a defendant's present ability but may consider a defendant's ability to pay in the future.' [Citation.] This include[s] the defendant's ability to obtain prison wages and to earn money after his release from custody." (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837; accord People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 (Aviles); see also People v. Santos (2019) 38 Cal.App.5th 923, 934.) The ability to pay determination may even include consideration of the potential for "monetary gifts from family and friends during" imprisonment. (Aviles, at p. 1077.)
Appellant argues "[i]t is unclear whether [he] will qualify for employment and earn wages while in prison," and "[a]ssuming he qualifies for prison employment, any job he obtains will not pay him much of a salary . . . ." The low wages paid to prisoners is an appropriate consideration for a trial court in determining ability to pay. However, the issue Appellant raises is not a question of law "based on undisputed facts." (Aviles, supra, 39 Cal.App.5th at p. 1074.) Instead, Appellant "seeks 'a factual determination of his alleged inability to pay based on a record that contains nothing more than his reliance on appointed counsel at trial.' " (Ibid.) Although Appellant objected below on the ground of inability to pay, because he failed to request an opportunity to present evidence on the issue, his claim has effectively been forfeited. (See People v. Avila (2009) 46 Cal.4th 680, 729 ["a defendant bears the burden of demonstrating his inability to pay"]; People v. Castellano (2019) 33 Cal.App.5th 485, 490 ["a defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court"].)
We reject Appellant's suggestion that Appellant's failure to request an opportunity to present evidence should be excused because it would have been futile. (See People v. Brooks (2017) 3 Cal.5th 1, 92 [" '[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence' "].) Nothing in the record shows such a request would have been futile. --------
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.