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People v. Lopez

Court of Appeals of California, Second District, Division Four.
Nov 4, 2003
No. B162932 (Cal. Ct. App. Nov. 4, 2003)

Opinion

B162932.

11-4-2003

THE PEOPLE, Plaintiff and Respondent, v. DAVID JOEL LOPEZ, Defendant and Appellant.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.


David Joel Lopez appeals from judgment entered following a jury trial in which he was convicted of two counts of criminal threats, counts 1 and 2 (Pen. Code, § 422); one count of corporal injury to a spouse, count 3 (Pen. Code, § 273.5, subd. (a)); three counts of torture, counts 4, 5 and 7 (Pen. Code, § 206) and the finding with respect to counts 4 and 5 that he personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subd. (a)) and with respect to count 7 that he personally used a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b)(1). Sentenced to prison for a total of three consecutive indeterminate life terms plus five years and four months, he contends the case must be remanded for resentencing as the trial court relied on an improper factor when imposing a consecutive indeterminate life term on count 5. For reasons explained in the opinion, we affirm the judgment.

While the jury had returned a guilty verdict on Count 6, it was brought to the attention of the prosecution and defense that the jury had erroneously submitted that verdict rather than its intended not guilty verdict. Because of this error, the prosecution moved to dismiss Count 6 in the interest of justice and the court granted the motion.

STATEMENT OF FACTS AND

PROCEDURAL HISTORY

On September 12, 2001, Sally Gregory was an activities director for a high school and Brenda Cassman was her office assistant. On that date, Cassman "broke down" and said she was very frightened for her life and she believed appellant was trying to obtain a rifle or gun to shoot her. Cassman also stated that appellant was going to sexually assault her sister and kill her parents. Cassman showed Gregory burns and bruises on her stomach, arms, legs and cheek and said appellant burned her using a car lighter and hit her. Prior to this date, Gregory had not seen these injuries, but Cassman always wore clothing and makeup that would cover them. Gregory and Cassman spoke for almost an hour and Gregory called a womens shelter.

Thereafter, Long Beach Police Officer Michael Mazzoni responded to a report of a domestic violence incident and spoke to Cassman. Cassman reported that during her relationship with appellant, he abused her, but after they stopped living together, he abused her "severely." Cassman stated she was frightened of appellant and that he had made threats against her family; he threatened to kill her parents and rape her younger sister. Cassman reported appellant had repeatedly burned her with a cigarette lighter, cut her with a knife and shot her in the face with a "CO2 pellet gun" several times.

Officer Mazzoni was dispatched to a residence in Long Beach and first spoke to Cassmans friend, Rebecca Farner, who stated she had called on behalf of Cassman.

Cassman testified that during her relationship with appellant he would verbally and physically abuse her. On one occasion while she was on their bed, he took a kitchen knife and held it to her throat, pressing it "really hard into [her] neck."

Cassman and appellant broke up after an argument. Appellant hit her and then moved out. However, Cassman and appellant stayed in contact, and appellant began to violently abuse her. On one occasion, appellant took the same knife he had used on her neck, burned the tip of it and carved or burned his name into her pelvis. Photographs taken of this area, in September 2001, showed "marks" from this, which had not yet healed. Cassman pleaded with appellant to stop and he responded, "If you really are sorry and you promise you wont do it again, you will let me do this." Appellant did not stop until he had completed carving his name.

After that event, and sometime between July 2001 and September 12, 2001, appellant came over to Cassmans Long Beach apartment, told Cassman to remove her pants and, using her glue gun, wrote his name on her "behind." The pain was unbearable and Cassman begged him to stop. He paused and then continued to "do one on the other side." When Cassman looked to see what appellant had done, the injury looked like "big bubbles." By September, when a photograph was taken, there were "marks" on her skin from the glue gun injury. Cassman did not tell her friends or parents about these incidents because she was frightened of appellant. He threatened "to do worse" if she did not consent to what he was doing. She believed he would kill her and that he was capable of killing her. He described how he was going to kill her, that he was going to shoot her and rape her sister and mother. She did not want to frighten her family with these threats, so she did not tell them. She simply "consented to anything that he wanted."

Appellant dated another woman and sometimes would take her to work in Cassmans car. On several occasions, appellant told Cassman to get into the trunk of her car while appellant drove the other woman to her destination.

During the period between July 2001 and September 2001, appellant used the cars cigarette lighter to "punish" Cassman for "choices and mistakes" she had made. He heated up the lighter and told "[her] to move whatever, [her] pants, [shed] roll them up, or [her] skirt, push it over or up or whatever, and he would choose a spot." He pressed the lighter until "it hurt very much" and when she told him it was hurting her he said, "just a little bit more. Just like two seconds." He burned her mainly on the upper part of her legs but also on the upper part of her pelvis. The burns bubbled then scabbed and scarred. She never told anyone that she was being burned by appellant before September 12, 2001, and did not seek medical treatment for these burns because she was afraid of the threats appellant made. She also believed she could take care of her wounds.

During August 2001, appellant and Cassman were parked in her car in Long Beach when appellant stabbed her left thigh with a knife, causing a one-inch deep cut. That same day, he stabbed her leg again, but the blade did not penetrate her leg as deep this time.

On September 11, Cassman and appellant were in her car and appellant told her to put her hand "on top of the stick"; "he cut [her] right pinky and [her] right thumb by holding the blade[of a knife] across [her] fingers." Cassman believed it was the same knife he had previously used to stab her leg. During the period between July 2001 and September 12, 2001, appellant cut or stabbed Cassman with a knife on six occasions.

In addition, appellant shot Cassman with a pellet gun, which caused bruising to her leg, abdomen, and neck. On other occasions, appellant hit her with his hands and with the pellet gun. On August 21, 2001, Cassman went to the hospital after appellant had beat her fingers with an empty cologne bottle. Appellant accompanied her, so she told hospital personnel that she injured her hand playing football and that a shelf with dishes fell on top of it. On another occasion, appellant sodomized Cassman with a sunscreen bottle.

Appellant continued to threaten to kill Cassman and her family. He said he was going to take Cassman, her mother, and her sister to Mexico, where they would dig their graves. While Cassman watched, he would shoot her mother and sister and then would shoot Cassman. Based upon everything appellant had done, Cassman believed he would carry out this threat. He also threatened to kill her father and brother.

On September 12, while Cassman was at work, appellant called and told her he was going to buy a gun and by Saturday she and her family "were gonna be killed." Cassman was terrified. She then told her supervisor, Sally Gregory, what had been happening and showed her the injuries. Gregory helped Cassman contact a battered womens shelter. Cassman also telephoned her best friend and the police.

Appellant testified he had never physically abused Cassman. He claimed she had a history of inflicting wounds upon herself and when they were about to split up, Cassman cut herself and showed him what she had done "for [him.]" Other defense witnesses testified that Cassman stated she would kill or hurt herself if she lost appellant.

DISCUSSION

Appellant contends the matter must be remanded for resentencing because the trial court relied on an improper factor when imposing a consecutive life term on count 5.

At the sentencing hearing, Cassman addressed the court stating that what appellant had done to her "was heinous, heartless and pure evil." Appellant "took one year of [her] life . . . because it has taken [her] one year to partially heal physically and emotionally from his crimes. [¶] [She has] struggled to find work; suffered financially. [She] lived in a shelter for battered women, attending classes on how to cope with the trauma, and spent many, many hours in private counseling to try and help [her] heal. [¶] [She will] never forget what [appellant] did to [her]. The physical and emotional scars he caused will be with [her] for the rest of [her] life." Cassman requested the court give appellant the "full" sentence.

The court indicated it had read the sentencing memoranda and found the defense memorandum to be a "misstatement to a great extent of the facts of the case." The court indicated, this was one of the most "gruesome trials" it had ever heard and had never heard a case where the facts were "so disgusting, so hideous. . . . [¶] It was an example of evil personified. I cant imagine one human being doing what the defendant did to the victim in this case. It goes beyond the pale of what is considered to be expected by a human being. Animals dont do the sorts of things the defendant did to the victim in this case. It was torture beyond belief." The court continued, "I cant understand the defendants smiling face as I sit here right now or during the trial. His visual expressions just dont make any sense with respect to the kind of activity he subjected this poor woman to during a period of time. [¶] It was horrible. It was vicious. It was excruciating, painful, and the word torture really doesnt do justice to what this poor lady went through. [¶] For counsel to claim that the victim was the one who provoked or initiated or complied with these acts is shocking to the record and to the evidence that was received, and to any way indicate the victim was a willing participant in such vicious, painful events is again inconsistent with the evidence that was submitted in this trial, and to claim the defendant was under coercion or duress is unsupported by any facts in this case at all. [¶] I take great quarrel with the sentencing memorand[um] submitted by defense counsel."

Thereafter, the court sentenced appellant in counts 4, 5 and 7 to three indeterminate life terms, each to run consecutive to one another. The court stated the reason for the consecutive term in count 5 was its viciousness and cruelty and in count 7 because of the victims vulnerability. Additionally, in count 7, there was an enhancement for personal use of a deadly or dangerous weapon, pursuant to Penal Code section 12022, subdivision (b)(1), a consecutive one-year term.

For the determinate terms, the court selected count 3 as the base term and sentenced him to the midterm of three years. For count 1, the court sentenced appellant to one-third the midterm, or eight months, to run consecutive to count 3 because of the planning and sophistication. On count 2, the court sentenced appellant to one-third the midterm, or eight months, to run consecutive to count 3 because of the viciousness and callousness involved.

Appellant contends the stated reason for imposing a consecutive term in count 5 is a required element of the crime of torture and so cannot be used as a reason to sentence consecutively.

Preliminarily, we observe appellant has waived this claim. The waiver doctrine applies "to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353; see also People v. Gonzalez (2003) 31 Cal.4th 745, 752.)

Apart from waiver, error if any in relying upon the viciousness and cruelty for imposing a consecutive sentence in count 5 was harmless. The record reflects other adequate reasons for imposing that consecutive sentence, for example, that the convictions involved separate acts of violence and were committed at separate times. It is not reasonably probable that a more favorable sentence would have been imposed in absence of error. (People v. Davis (1995) 10 Cal.4th 463, 552.)

In view of the harmless nature of any error, we need not determine whether, as respondent argues, the degree of cruelty supporting the aggravating factor was far beyond that necessary to establish the intent requirement of the offense of torture.

DISPOSITION

The judgment is affirmed.

We concur: EPSTEIN, J., HASTINGS, J.


Summaries of

People v. Lopez

Court of Appeals of California, Second District, Division Four.
Nov 4, 2003
No. B162932 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Lopez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID JOEL LOPEZ, Defendant and…

Court:Court of Appeals of California, Second District, Division Four.

Date published: Nov 4, 2003

Citations

No. B162932 (Cal. Ct. App. Nov. 4, 2003)