Opinion
E071895
10-30-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN MIGUEL GUERRA, Defendant and Appellant.
Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1701533) OPINION APPEAL from the Superior Court of Riverside County. Thomas D. Glasser, Judge. Affirmed with directions. Avatar Legal and Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Guerra was convicted of attempted premeditated murder and other crimes. On appeal, he challenges the sufficiency of the evidence on the attempted murder charge, asks for remand for resentencing under the newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), and contends Dueñas error (see People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas)). We reject Guerra's claim regarding sufficiency of the evidence but agree with him (and the People, who concede the issue) that the sentence must be vacated and the matter remanded for resentencing. We do so without expressing any view about how the trial court should exercise its new discretion under Senate Bill 1393. Because Guerra may raise any Dueñas related issues on remand, we decline to address his claim of Dueñas error here.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL HISTORY
Jane Doe, the victim, wanted to divorce Guerra in 2017, so she moved out of the family home and into her sister's home. Guerra would ask her to move back into the family home. He would also tell her that he would kill her if he ever saw her with another man.
One day in July 2017, Doe and her children were at the sister's house when Guerra showed up, saying he wanted to talk. Doe refused, and she and the children got into a car and started driving away. Guerra started following with his car, variously speeding up to and cutting off Doe's vehicle. As their son (who was driving Doe's vehicle) testified, Guerra "would get behind [them] and just kind of speed up, slow down, speed up, cut us off, and slow down in front of us." The son eventually called 911, and Guerra was arrested. The arresting officer testified that Guerra "pretty much repeated several times that he was jealous, that his wife had just left him, and he didn't like her working her new hours at work and believed that she was cheating on him . . . with her new schedule." In early August 2017, as the result of a plea deal, Guerra pled guilty to a charge of making a criminal threat to Doe. Guerra was ordered to stay away from the family home, as well as from Doe and their son.
After being released from custody, Guerra moved back into the family home despite the protective order. Guerra told Doe that he would move out, so Doe moved out of her sister's and back into the family home. Guerra left for some number of days, but eventually started staying at the home again, despite Doe's objections. They slept in separate rooms.
On August 22, 2017, Doe returned home from work at around 3 a.m. She saw Guerra laying on the bed in the master bedroom. Doe believed Guerra was only pretending to be asleep because he snores when asleep but was not snoring then. Doe went to sleep on the bed in their daughter's bedroom.
At around noon that day, while Doe was still sleeping, Guerra entered the daughter's bedroom. Doe was woken up by the sound of the door opening. She saw Guerra standing near the foot of the bed. Guerra, who was holding a flip blade in a fist by his ear with the blade extended, said, "Sorry, I have to do it."
Doe screamed for help, saying Guerra was trying to kill her. Their son went to the room. He stated at trial that "[m]y mom was crying and my dad was just there, he looked angry, and was holding a knife." The son asked Guerra for the knife. He then reached for it, and Guerra pulled the knife back, cutting one of the son's fingers. Guerra then left the house. When Guerra attempted to re-enter about an hour later, the son called 911, and the police arrested Guerra.
Guerra was charged with attempted premeditated murder (§§ 187, subd. (a), 664; count 1), burglary of an inhabited dwelling (§ 459; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), deterring an executive officer (§ 69; count 4), and misdemeanor violation of a protective order (§ 166, subd. (c)(1); count 5). The information also alleged a serious felony prior (§ 667, subd. (a)) as well as a strike prior (§§ 667, subd. (c) and (e)(1), 1170.12, subd. (c)(1)), both of which relate to the criminal threat charge Guerra pled guilty to in August 2017. The information also alleged in counts 1 and 2 that Guerra personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)).
Count 4 was the result of Guerra punching an officer while in a holding cell and is not related to any of the issues raised on appeal.
A jury found Guerra guilty on all counts and found true the allegation that Guerra used a deadly or dangerous weapon. The trial court found true the serious felony prior and the strike prior.
Guerra was sentenced to a determinate term of 10 years as well as a consecutive, indeterminate term of 14 years to life. The determinate term included five years for Guerra's serious felony prior. The trial court imposed a $5,000 restitution fine under section 1202.4, a $120 criminal conviction assessment fee under Government Code section 70373, and a $160 court security fee under section 1465.8.
II. ANALYSIS
A. Sufficiency of the Evidence
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one." (People v. Smith (2005) 37 Cal.4th 733, 738.) "'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]'" (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7.) Such an act "'requires conduct that goes beyond "mere preparation" and "show[s] that [defendant] is putting his or her plan into action."'" (People v. Garton (2018) 4 Cal.5th 485, 510 (Garton).)
"For example, if a person decides to commit murder but does nothing more, he has committed no crime. If he buys a gun and plans the shooting, but does no more, he will not be guilty of attempt. But if he goes beyond preparation and planning and does an act sufficiently close to completing the crime, like rushing up to his intended victim with the gun drawn, that act may constitute an attempt to commit murder." (People v. Johnson (2013) 57 Cal.4th 250, 258, fn. omitted (Johnson).) The defendant's "geographic proximity to the victim" is a relevant factor to consider in determining whether the act requirement has been satisfied. (Garton, supra, 4 Cal.5th at p. 511.)
Here, the evidence was sufficient for a rational jury to conclude that Guerra attempted to murder Doe. The evidence indicated that Guerra approached Doe as she was sleeping and, with knife in hand, said, "Sorry, I have to do it." The "it" could plausibly have referred to the act of killing Doe, as the evidence also showed Guerra had told Doe that he would kill her if he ever saw her with another man. Moreover, Guerra was mere feet away from Doe, standing by the foot of the bed she was sleeping in. Such actions went "beyond preparation and planning" and are akin to "rushing up to [an] intended victim with the gun drawn." (People v. Johnson, supra, 57 Cal.4th at p. 258.)
Guerra contends that instead of intending to murder Doe, he may have been planning to kill himself in front of Doe. This is because, Guerra contends, he "never actually attacked her." But even assuming this was a plausible possibility, "[w]here the circumstances reasonably justify the trier of fact's findings," as they do here, "a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's dismissal." (People v. Zamudio (2008) 43 Cal.4th 327, 358.)
Guerra also contends that the facts here are similar to People v. Miller (1935) 2 Cal.2d 527, where our Supreme Court held on the facts before it that the evidence was insufficient for an attempted murder conviction. In Miller, the defendant had threatened to kill the victim because the victim "had been annoying [the defendant's] wife." (Id. at p. 529.) On the day of the attempted murder, the victim had been working on a field belonging to the town's constable. (Ibid.) The defendant went to the field, where the constable was "250 or 300 yards away" and the victim "about 30 yards beyond" the constable. (Ibid.) The defendant progressed "about 100 yards" before appearing to load his rifle, but "[a]t no time did he lift his rifle as though to take aim." (Ibid.) The victim saw the defendant at around this time and began fleeing, and the defendant "continued toward [the constable,] who took the gun into his own possession, the defendant offering no resistance." (Ibid.) The court held that the evidence was insufficient for attempted murder because "up to the moment the gun was taken from the defendant no one could say with certainty whether the defendant had come into the field to carry out his threat to kill [the victim] or merely to demand his arrest by the constable." (Id. at p. 532.)
The facts here are not similar to Miller. In Miller, the defendant never got within a hundred yards or so of the victim and never "lift[ed] his rifle as though to take aim." (People v. Miller, supra, 2 Cal.2d at p. 529.) Here, on the other hand, Guerra was standing mere feet from Doe and held up a blade in a fist by his ear. Guerra's "geographic proximity" (Garton, supra, 4 Cal.5th at p. 511) to Doe, as well as the fact that he held up the knife and said "Sorry, I have to do it," makes his reliance on Miller misplaced.
On this record, we conclude that substantial evidence supports the jury's conclusion that Guerra attempted to murder Doe. B. Senate Bill 1393
Guerra contends that he is entitled to a remand so he can be resentenced in light of Senate Bill 1393. The People concede the issue, and we agree that remand is appropriate.
Effective January 1, 2019, Senate Bill 1393 amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court in its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under the versions of these statutes in effect when the trial court sentenced Guerra, the court was required to impose a five-year consecutive term for "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony" (former § 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (former § 1385, subd. (b)).
Our Supreme Court has recently held that Senate Bill 1393 applies retroactively to judgments that were not final on January 1, 2019, when Senate Bill 1393 went into effect. (People v. Stamps (June 25, 2020, S255843) 9 Cal.5th 685, 699.) Both Guerra and the People have advanced similar positions in their briefs, even though briefing concluded before Stamps was decided. Guerra's judgment is not yet final, so Senate Bill 1393 applies to him. Moreover, although remand is not required if the record clearly shows that the trial court would not have struck the enhancement even if it had the discretion (see People v. Jones (2019) 32 Cal.App.5th 267, 273), the People concede, and we agree, that the record here contains no such indication.
Accordingly, we vacate Guerra's sentence and remand the matter for resentencing. We offer no opinion about how the trial court should exercise its discretion on remand. C. Dueñas Error
Guerra contends that his constitutional rights were violated by the trial court's failure to consider his ability to pay certain of the imposed fines and fees, which we refer to as Dueñas error.
In Dueñas, supra, 30 Cal.App.5th at p. 1157, decided while this appeal was pending, the Court of Appeal held that it violates due process under the federal and state Constitutions to impose the court operations and facilities fees without first determining the convicted defendant's ability to pay them. (Id. at pp. 1168-1169.) In addition, "to avoid serious constitutional questions" raised by the statutory restitution scheme, the Dueñas court decided execution of the mandatory restitution fine must be stayed unless the trial court determines that the defendant has the ability to pay it. (Id. at p. 1172.) Later cases have held that, at the ability to pay hearing, the defendant bears the burden of showing his or her inability to pay, and the court "must consider all relevant factors," including "potential prison pay during the period of incarceration to be served by the defendant." (People v. Castellano (2019) 33 Cal.App.5th 485, 490 [remanding for an ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934 [on remand, defendant must show inability to pay, and court may consider potential prison pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted Nov. 13, 2019, S257844 [same].) There is a split of authority in the Court of Appeal as to whether Dueñas was correctly decided. (E.g. People v. Hicks (2019) 40 Cal.App.5th 320, 322, 327-329, review granted Nov. 26, 2019, S258946 [holding that Dueñas was wrongly decided].) The California Supreme Court has granted review in Kopp to decide whether courts must "consider a defendant's ability to pay before imposing or executing fines, fees, and assessments" and if so, "which party bears the burden of proof regarding defendant's inability to pay." (Kopp, review granted, Nov. 13, 2019, S257844.)
Here, however, we need not decide whether Dueñas was correctly decided. As noted, the matter must in any case be remanded for resentencing. On remand, Guerra may request a hearing and present evidence demonstrating his inability to pay the challenged fines and fees.
III. DISPOSITION
Guerra's convictions are affirmed. His sentence is vacated. The matter is remanded to the trial court with directions (1) to exercise its discretion under section 667, subdivision (a)(1) and 1385, as amended by Senate Bill 1393; (2) if requested, to consider Guerra's arguments and evidence regarding his inability to pay fines and fees that otherwise would be imposed; and (3) to resentence Guerra.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
MCKINSTER
Acting P. J.
FIELDS
J.