Opinion
G062100
06-11-2024
THE PEOPLE, Plaintiff and Respondent, v. NELSON MAURICIO LUNATY GARCIA, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Warren J. Williams and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 15NF2479 Jonathan S. Fish, Judge.
Affirmed and remanded for calculation of custody credits.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Warren J. Williams and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
* * *
Nelson Mauricio Lunaty Garcia (Lunaty) appeals from the court's posttrial resentencing order that followed our remand from an earlier appeal. We directed the trial court to resentence Lunaty on two counts, after considering the mitigating factor that he may be suffering from post-traumatic stress disorder (PTSD) arising out of earlier military service.
Consistent with our prior opinion, we refer to appellant as Lunaty.
Lunaty argues that remand is again required because, while the court considered his possible PTSD arising from military service as a mitigating factor pursuant to Penal Code section 1170.91, his counsel was ineffective for not also arguing he was entitled to the benefit of newly-amended section 1170, subdivision (b)(6)(A). (Stats. 2023, ch. 560, § 2.5.) That section requires the court to sentence a defendant to the low term if his or her "psychological, physical, or childhood trauma" was a contributing factor in the commission of his or her offenses and after weighing the aggravating and mitigating factors, it would not be contrary to the interests of justice to do so. We disagree.
All further statutory references are to the Penal Code unless otherwise indicated.
First, we presume the court applied the law correctly; the appellant can only overcome that presumption with affirmative evidence demonstrating otherwise. Lunaty has made no such showing.
And second, we are not persuaded by Lunaty's contention that the amendment of section 1170, subdivision (b)(6)(A), changed the law in a significant way as it pertains to military-related trauma. Both statutes require the court to sentence a defendant who suffers from trauma to the lower term sentence, unless other factors convince the trial court it would be unjust to do so. Lunaty's trial counsel argued this issue, and specifically requested that the lower term be imposed. But because the trial court concluded that aggravating factors outweighed the mitigating impact of Lunaty's military trauma, it declined to impose the lower term. That outcome would have been the same under either statute.
Finally, Lunaty argues the case must be remanded so the trial court can determine the correct amount of presentence and postsentence custody credits to be awarded and prepare an amended abstract of judgment. The Attorney General agrees, and so do we. The case will be remanded for that limited purpose.
We take the underlying facts from our prior opinion. (People v. Lunaty Garcia (May 9, 2019, G055497 [nonpub. opn.] (Lunaty I).)
"The crimes Lunaty was charged with all took place on the night of September 2, 2015. He left his work shortly after 9:30 p.m., without clocking out as required, and went to a bar called InCahoots in Fullerton. He waited in the bar's parking lot for women who were leaving the bar alone and going to their cars.
"At approximately 11:45 p.m., a female employee of InCahoots-referred to in the information as Jane Doe #2 (JD2)-left work early because she was not feeling well. Lunaty approached JD2's car as she was sitting in the driver's seat .... He knocked on the car door, and because JD2 had not yet started the car-and thus could not open her window-she opened the car door slightly.
"JD2 did not know Lunaty .... Although Lunaty never identified himself as a police officer, JD2 had the impression he might be an undercover police officer based on what he was wearing-a polo shirt, slacks with a belt and nice shoes. He asked her, 'Have you been drinking tonight?' She told him she had not been drinking, and explained she was 'just sick.' Lunaty then asked her if she needed water. When she told him no, he said 'Okay. Well, do you need anything? Do you need a police escort home?'
"By that point, JD2 was 'a little scared,' thinking the situation had become 'weird,' so she told Lunaty 'no' and closed her car door. Lunaty then walked away from the car and stood in front of the store next door . . . as JD2 drove away.
"A short while later, the primary victim, identified in the information as Jane Doe #1 ('JD1'), exited InCahoots with a friend; each of them went to her own car. JD1 recalled that she had been sitting in her car for a few minutes, . . . when Lunaty approached her car and knocked on the window. JD1 rolled down her window and Lunaty asked her whether she had been drinking. When she responded 'yes,' he asked her how many drinks she had had and also asked her for her driver's license.
"After JD1 gave Lunaty her driver's license, he walked to the back of her car with it, and appeared to be talking into a radio device perched on his shoulder. JD1 also noticed Lunaty wore something on his hip that resembled a detective's badge. She thought he was a police officer.
"When Lunaty returned to her door, he asked JD1 to step out of her car and she complied. Lunaty asked her a number of questions such as how old she was, whether she worked or was in school, and whether she had a boyfriend. He advised her that she was slurring her words, and told her he was going to conduct some tests.
"Lunaty used a tongue depressor and a cotton swab to wipe the inside of JD1's mouth. He then directed her to his car, where he patted her down 'mostly around the pockets of [her] shorts' and 'under [and] around [her] bra.' After Lunaty directed JD1 to put her hands behind her back, she asked him, 'Am I getting arrested?' And he replied, 'It looks that way, doesn't it.' He secured JD1's hands behind her back with zip ties and placed her in the back of his car.
"Lunaty then drove away from the bar, and pointed to a nearby building which JD1 recalled him describing as something like 'the office or jail I work out of.' After he had been driving for a few minutes-claiming he was 'making his rounds in the area'-JD1 began to question whether he was really a police officer, and she started to cry and was 'freaking out.' She asked Lunaty where he was taking her and he responded, 'I am going to take you in. This is going to look really bad on your record.' Although JD1 asked Lunaty what police department he worked for, he said he could not tell her.
"Lunaty told JD1 that after she was arrested, she would not be able to get a job, would have to pay for a lawyer, go to court, and that her car would be towed. He also told her he had 'bigger fish he could fry' and did not want to book her. Eventually, he asked her if she could 'think of anything that we can do instead so I can go catch somebody else?' When she inquired what he meant, Lunaty suggested she 'think outside the box.' JD1 asked if she could contact someone to give her a ride home, but Lunaty replied, 'It is too late for that. You can't do that now.'
"When JD1 offered no further suggestions, Lunaty told her he was getting angry and she was 'running out of time.' Finally, JD1 asked Lunaty if he was implying she should do something sexual, and he replied, 'Yeah, that would be nice.' When she expressed shock at his suggestion, he told her 'that is what it is going to take. That is what it is going to be' ....
"Lunaty then parked in an unpaved area that overlooked the city of Fullerton. He removed the zip ties binding JD1's wrists and pulled up JD1's shirt to look at her body. When she tried to pull down her shirt, he began to pull down her shorts. Again, JD1 resisted ....
"Ultimately, Lunaty forced JD1 to orally copulate him, digitally penetrated her anus, and sodomized her. Afterward, JD1 asked Lunaty to drive her back to her car, which he did. On the way, he repeatedly asked her whether they could do this again, and she said no.
"After they arrived back at the bar's parking lot, JD1 sat in her car for awhile because she was so shaken, and then she drove home. She did not immediately report the incident to police because she wanted to forget it.
"Meanwhile, Lunaty returned to his work place around 2:00 a.m. He bragged to a co-worker that he had 'picked up a girl in a bar,' and offered the co-worker the opportunity to 'smell his fingers.' He also mused that it would be 'cool if he could impersonate a police officer and have [a girl] perform sexual favors on [him] to get her off the hook.'
"Nearly a week later, after JD1 had time to think about what Lunaty had done to her-and she began worrying it might happen to someone else-she disclosed the details to the friend who had been with her at InCahoots. JD1's friend encouraged JD1 to call the police and also to tell her brother what happened. JD1 told her brother, and he and JD1's friend decided to return to the bar the next night to see if they could spot anyone who matched JD1's description of Lunaty. JD1's brother spotted Lunaty sitting in his car and called the police.
"Patrol officers from the Fullerton Police Department responded to the call and initiated contact with Lunaty, who seemed very nervous. When they searched his car, they found a nylon briefcase bag with a loaded gun, a pair of handcuffs, a walkie-talkie with an ear piece and microphone, scissors, and what appeared to be a homemade police identification from the Fullerton Police Department in the name of John McClain. The police also found tongue depressors, Q-tips (both used and new), and zip ties. Later testing of semen found on JD1's shorts matched Lunaty's DNA profile.
"Not long after Lunaty's arrest, JD2 saw a Facebook post with his photo, seeking information about an incident at InCahoots. She called the police hotline number from the Facebook post and reported what had happened to her.
"In connection with his primary victim, JDI, Lunaty was charged with: kidnapping with intent to commit a sex offense (count one; § 209, subd. (b)(1)); forcible oral copulation (count two; § 288a, subd. (c)(2)(A)); forcible sexual penetration (count three; § 289, subd. (a)(1)(A)); forcible sodomy (count four; § 286, subd. (c)(2)(A)); attempted forcible rape (count five; §§ 664, subd. (a), 261, subd. (a)(2)); and carrying a loaded firearm in public (count eleven; § 25850, subds. (a) &(c)(7)). The jury convicted him on all of those counts.
"Additionally, as to the forcible sex offenses alleged in counts two through four, the jury found true the allegations that Lunaty kidnapped JDI (§ 667.61, subds. (b) &(e)) and the movement substantially increased the risk of harm to her (§ 667.61, subds. (a) &(d)(2)).
"In connection with Lunaty's other victim, JD2, he was charged with: attempted kidnapping to commit a sexual offense (count six; §§ 664, subd. (a), 209, subd. (b)(1)); attempted forcible oral copulation (count seven; §§ 664, subd. (a), 288a, subd. (c)(2)(A)); attempted sexual penetration (count eight; §§ 664, subd. (a), 289, subd. (a)(1)(A)); attempted forcible rape (count nine; §§ 664, subd. (a), 261, subd. (a)(2)); and attempted forcible sodomy (count ten; §§ 664, subd. (a), 286, subd. (c)(2) (A)). The jury convicted him of attempted kidnapping, but acquitted him on the four other counts alleging attempted sexual offenses. The jury found him guilty of the lesser included offense of simple assault (§ 240) in connection with each of those four counts.
"The court sentenced Lunaty to a term of 32 years to life in prison comprised of: an indeterminate term of 25 years to life on count two (forcible oral copulation) pursuant to section 667.61, subdivision (a); three stayed indeterminate life terms on counts one (kidnapping with intent to commit a sexual offense), three (forcible sexual penetration), and four (forcible sodomy); a consecutive determinate term of 7 years on count six (attempted kidnapping to commit a sexual offense); a stayed determinate term on count five (attempted forcible rape), and five concurrent terms of six months on counts seven through ten (simple assault) and count eleven (gun possession in public)."
In imposing that sentence, the court explained it "selected the midterm because of the following findings: Under 4.421 of the rules of court, under (a)(4), the victim was particularly vulnerable, a young woman alone in her car in the parking lot. [And under] (a)[(8)], the manner in which the crime was carried out indicates planning, sophistication, and professionalism. [¶] There was a fake I.D., various police accoutrement, zip-ties and radio, and the defendant's patrolling, what appeared to be patrolling the lot."
The court noted there were no circumstances in aggravation related to Lunaty, but his lack of a prior record was mitigating and his prior military service, although "not specifically found as a circumstance in mitigation under [the] rules of court," was considered.
On appeal, we reversed Lunaty's convictions on counts seven through ten (misdemeanor assault counts relating to the second victim) on the ground there was insufficient evidence to support convictions for assault. We also remanded to the trial court with directions to resentence Lunaty on counts five and six, giving consideration to the mitigating fact that he may be suffering from military-related PTSD, as required by section 1170.91, subdivision (a).
In December 2022, the court held the resentencing hearing pursuant to section 1170, subdivision (b); the court considered Lunaty's military service-induced PTSD as a mitigating circumstance as to counts five and six.
After hearing argument from Lunaty's counsel, who advocated for imposition of the lower term based on Lunaty's significant military record and evidence of related PTSD, the court noted that "[t]he documents clearly indicate that [Lunaty] is suffering from PTSD as a result of his military service, combat service," and that it would consider that in mitigation. It also stated it considered Lunaty's lack of criminal record as a mitigating factor.
However, the court again explained it weighed the aggravated facts of the crime very heavily, characterizing those facts as "very disturbing, creepy, scary," and noting that despite a substantial amount of experience, it had never before seen anything like them. The court again relied specifically on the sophistication and planning involved in Lunaty's crimes, which it described as "cold, calculating, predatory," emphasizing his plan was to "prey on young women who had been drinking and were alone in the parking lot at night." The court also noted that as to count five, there was an additional factor in aggravation, which is that the victim's hands were bound.
Specifically, the court reiterated that it "weigh[ed] 4.421(a) very heavily."
After weighing all of the relevant factors, the court chose to reimpose the middle term on counts five (which was stayed) and six.
DISCUSSION
1. Standard of Review
As in all appeals, we begin by presuming the trial court's judgment is correct; it is the appellant's burden to affirmatively establish error. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
a. Presumption that Law Was Correctly Applied
Here, while Lunaty's challenge to the resentencing order is framed as a claim of attorney error in failing to argue for application of the updated version of section 1170, subdivision (b), the claim effectively asserts the court did not understand and apply the statute correctly. However, "[a]s a general rule '"a trial court is presumed to have been aware of and followed the applicable law.'"" (People v. Tilley (2023) 92 Cal.App.5th 772, 780.)
An argument that the court misunderstood or misapplied the law must be supported by evidence affirmatively demonstrating that the court did so. Our determination that the court erred in applying the law in the initial sentencing hearing was based on the court's own clear statement. Although the Attorney General argued there that the court had properly considered Lunaty's PTSD in its initial sentencing, we rejected the assertion because the court affirmatively stated at the hearing, incorrectly, that Lunaty's military service was not required to be considered as a mitigating factor. (Lunaty I, supra, G055497.)
There is no such statement here. Indeed, Lunaty argues only that "[t]here is nothing in the record from the resentencing proceedings to indicate the trial court was aware of the changes to its discretion based on section 1170, subdivision (b)(6)(A)." But that lack of affirmative evidence is immaterial.
The court expressly stated it was resentencing Lunaty pursuant to section 1170. Thus, it is clear the court had that statute in mind, and we presume the court understood its content. Although the court's other comments focused on section 1170.91, which required it to treat Lunaty's military service and PTSD as a mitigating factor, nothing it said was inconsistent with our conclusion that it also gave proper consideration to section 1170, subdivision (b), in its analysis.
b. Presumption that Court's Reliance on Section 1171.91 Would Have Been Correct
Lunaty's argument fails for related reasons as well: he fails to demonstrate why it would have been error for the court to apply section 1170.91, which specifically governs the treatment of military-related service and trauma in resentencing him, instead of the more general trauma provision contained in section 1170, subdivision (b). Nor does Lunaty demonstrate that the effect of these two provisions, although worded somewhat differently, would be different in this case.
Lunaty's opening brief outlines the law applicable to ineffective assistance of counsel, as well as the retroactive effect of the Legislature's amendment of section 1170, subdivision (b). It does not, however, analyze how the amendment of section 1170, subdivision (b), actually changes the analysis of military-related trauma as a mitigating factor, or why it would have changed the outcome in this case.
Because we must presume the court's ruling was correct, and we must indulge all inferences in favor of its ruling, Lunaty also must demonstrate that, if the court had applied the law in the manner he claims it did, the court committed error. To demonstrate error, an appellant must present meaningful legal analysis supported by citations to authority, supporting that claim of error. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16.) When a point is asserted, even inferentially, without argument and authority for the proposition, "it is deemed to be without foundation and requires no discussion by the reviewing court." (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
Because Lunaty has not presented us with argument supporting his implied assertion that the court erred in applying section 1171.91, rather than section 1170, subdivision (b), in resentencing him, or that the application of section 1170, subdivision (b), would have materially altered the court's analysis, he has waived those claims.
In any event, when we look at the two statutes, it is not clear to us the court would have erred by applying section 1171.91, rather than section 1170, subdivision (b), at the resentencing hearing. As a general rule, when two statutes governing the same subject conflict in what they require-which Lunaty seems to assume is the case here- the specific statute will control over the general statute. (Code Civ. Proc., § 1859.) Section 1170.91 specifically governs the mitigating effect of military-related trauma.
The two statutes, although worded differently, do not appear to have a substantially different effect when applied-at least where, as here, the PTSD is actual, rather than potential, and where there are also significant aggravating factors to be considered in sentencing.
Section 1170.91, subdivision (a), states that "[i]f the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the defendant's military service, the court shall consider the circumstance as a factor in mitigation when imposing a sentence." Thus, section 1170.91 requires the court to treat the defendant's military service, and any potential resulting trauma, as a mitigating factor that, standing alone, would support imposition of the lower term. (See People v. Bonilla-Bray (2020) 49 Cal.App.5th 234 236 ["since 2015, California law has required trial courts to consider service-related trauma, substance abuse, and mental health problems as mitigating factors weighing in favor of low-term felony sentences"].)
The amended version of section 1170, subdivision (b)(6)(A), on the other hand, requires that "[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." Hence, the amended statute creates a presumption in favor of the lower term when trauma is a contributing factor in the crime (People v. Hilburn (2023) 93 Cal.App.5th 189, 205), but that low term must be imposed only if the court concludes that the trauma, plus any other mitigating factors, is not outweighed by the aggravating circumstances.
Thus, under both statutes, a defendant's trauma is a factor to be weighed along with other relevant factors in deciding which prison term is appropriate. In neither case is the court required to impose a lower term based on a finding of trauma. Because the court is obligated to engage in a weighing process under section 1170, subdivision (b), we agree with the Attorney General that any error in failing to apply that statute would be harmless in this case. As explained in People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, even in cases where the court misunderstood the scope of its discretion, remand is not necessary if 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.'"
Here, the court's comments at the resentencing hearing demonstrate that it believed the aggravating factors associated with Lunaty's crimes were almost uniquely egregious. The court described the sophistication and planning involved in Lunaty's crimes as "cold, calculating, [and] predatory." It characterized Lunaty's methods as "very disturbing, creepy, [and] scary," and noted it had "never seen anything quite like [this]." In light of those comments, we have no doubt the court would have concluded that imposing a presumptively appropriate low term sentence under section 1170, subdivision (b), was contrary to the interests of justice in this case.
2. Determining Correct Number of Custody Credits
Finally, Lunaty contends the case must be remanded for a recalculation of his custody credits because the court failed to recalculate them at his second sentencing hearing. (See People v. Buckhalter (2001) 26 Cal.4th 20, 29 (Buckhalter) ["[W]hen a prison term already in progress is modified . . . the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody"].)
The record reflects the court initially acknowledged the need to recalculate the credits at the resentencing hearing. But when it asked Lunaty's counsel if she had the credits figured, she responded she did not, explaining she believed "that [the California Department of Corrections and Rehabilitation] would calculate that on their own." The court then appeared to accept her theory as accurate, stating: "Okay. So we'll have them calculate per Buckhalter."
That reliance on the California Department of Corrections and Rehabilitation (CDCR) was erroneous, however, as Buckhalter requires the court to perform the recalculation. The Attorney General agrees the court was obligated to recalculate the credits and that remand is appropriate for this purpose. We agree.
DISPOSITION
The sentence imposed on remand is affirmed. However, the case is remanded to the trial court with directions to calculate the correct amount of presentence and postsentence custody credits and to prepare an amended abstract of judgment and forward a certified copy to the CDCR.
WE CONCUR: MOORE, ACTING P. J. SANCHEZ, J.