Opinion
F087550
02-18-2025
THE PEOPLE, Plaintiff and Respondent, v. EUGENE HOLGUIN MARTINEZ, JR., Defendant and Appellant.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR074520. Sosi Chitakian Vogt, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Eugene Holguin Martinez, Jr., contends on appeal that the judgment must be reversed and the matter remanded because the evidence presented at trial was insufficient to support his convictions on counts 1 and 2. The People disagree. We affirm.
PROCEDURAL SUMMARY
On August 25, 2022, the Madera District Attorney filed an information charging defendant with first degree robbery (Pen. Code, §§ 211, 212.5, subd. (a); count 1); and felony elder abuse (§ 368, subd. (b)(1); count 2). It was further alleged defendant suffered two prior serious felony convictions (§ 667, subd. (a)(1)) and two prior strike convictions (§§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code unless otherwise noted.
The victim of both counts was defendant's mother, Carmen.
On September 20, 2023, a jury found defendant guilty of count 1 and on count 2, found defendant guilty of the lesser included offense of misdemeanor endangering an elder (§ 368, subd. (c)). On September 28, 2023, defendant admitted he suffered the two prior serious felony convictions and two prior strike convictions in exchange for certain sentencing considerations from the prosecution.
On November 3, 2023, the trial court elected to dismiss one of defendant's prior strikes for sentencing purposes.
On January 26, 2024, the trial court sentenced defendant to a total prison term of 13 years, as follows: on count 1, eight years (the middle term, doubled pursuant to the prior strike conviction), plus an additional five years for the prior serious felony conviction enhancement (§ 667, subd. (a)(1)). The court did not sentence defendant on count 2.
On January 31, 2024, the trial court recalled the case and imposed a 180-day concurrent sentence on count 2.
On January 29, 2024, defendant filed a notice of appeal.
FACTUAL SUMMARY
Defendant lived with his mother, Carmen, in her home. Carmen was 68 years old and suffered from various medical conditions impacting her strength and agility, including a "dropped foot," which had been broken several times, spinal cord damage, nerve damage, diabetes, high blood pressure, and poor balance.
On May 26, 2022, defendant and Carmen were at Carmen's home watching television. Carmen was also using her phone to look at a social media website. She was seated on a "daybed."
Defendant told Carmen he wanted to use her phone because his was "locked" and unusable because he had forgotten his passcode. He was "demanding and being a little aggressive." Carmen was tired of defendant forgetting the passcode to his phone and using her phone, so she told him," 'No.'" Defendant also believed Carmen was using her phone at that time to take photos of him and told her to" '[q]uit taking pictures of me.'" Carmen told him she was not taking pictures of him and was just looking at social media.
Defendant then grabbed Carmen's phone while it was in her hands. Carmen attempted to maintain her grip on her phone, struggling with defendant. Defendant eventually pulled the phone away from Carmen and out of her grip. This caused Carmen to fall to the ground from the daybed.
The struggle with defendant and resulting fall caused Carmen to sustain a "very bad bruise" on her leg, a scraped elbow, and small cut on her hand. The bruise on her leg lasted about a month.
After Carmen fell, defendant went out the front door of Carmen's home with her phone. He did not help Carmen up from the ground or say anything to her before he left.
Once Carmen was able to stand, she left her home quickly, walking as fast as she could with her limp, because she was afraid defendant might return. She left so quickly that she did not stop to put on her shoes. Carmen drove to the police station to report defendant's conduct because she did not have a phone with which to call emergency services. She told a police officer in the lobby of the police station about the incident, and the officer took photographs of her injuries. Police officers went to Carmen's home to check whether defendant had returned, but he had not. Defendant returned to the home several hours later, but Carmen did not let him inside. Carmen could not call the police to tell them defendant returned to the home because she did not have her phone.
The following day, defendant's girlfriend brought Carmen's phone back to her. However, defendant had added a new passcode to the phone, so Carmen was unable to use it. Defendant did not remember the passcode he put on Carmen's phone while it was in his possession. The phone company employees were unable to unlock the phone for Carmen without the new passcode, so she had to replace it.
DISCUSSION
I. COUNT 1
Defendant contends due process requires reversal of the first degree robbery conviction (count 1) because there is insufficient evidence that defendant intended to totally or partially deprive Carmen of a "major portion" of her phone's value when he took it. The People disagree. We agree with the People.
A. Law
Due process requires the reversal of a criminal conviction unless sufficient evidence was adduced at trial to justify a rational trier of fact in finding guilt beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Johnson (1980) 26 Cal.3d 557, 578.)
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) "It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact." (People v. Tripp (2007) 151 Cal.App.4th 951, 955; accord, People v. Young (2005) 34 Cal.4th 1149, 1181.) We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence 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.)
The reviewing court "does not limit ... its review to the evidence favorable to the respondent." (People v. Johnson, supra, 26 Cal.3d at p. 577.) Instead, it "must resolve the issue in light of the whole record-i.e., the entire picture of the defendant put before the jury-and may not limit [its] appraisal to isolated bits of evidence selected by the respondent." (Ibid.)
Although we review the whole record, "[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296; see People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore," '" '[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.'" [Citations.]'" (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgement. (Ibid.; Panah, at pp. 487-488.)
Reasonable inferences from the evidence must be based on substantial evidence, not on suspicion, speculation, supposition, surmise, or conjecture. (People v. Raley (1992) 2 Cal.4th 870, 891, superseded by statute as stated in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8.) A finding based on conjecture or surmise cannot be affirmed. (People v. Memro (1985) 38 Cal.3d 658, 694-695, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn.2 .) A doubtful or uncertain fact must inure to the detriment of the party with the burden of proof on the issue. (People v. Tatge (1963) 219 Cal.App.2d 430, 436; Reese v. Smith (1937) 9 Cal.2d 324, 328.)
Robbery is" 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property." (People v. Bacon (2010) 50 Cal.4th 1082, 1117 (Bacon), citing § 211.)
"But the general rule is not inflexible: 'The word "permanently," as used here is not to be taken literally.'" (People v. Davis (1998) 19 Cal.4th 301, 307.) The intent to "permanently" deprive the owner may also be satisfied by the intent to temporarily, "but for an unreasonable time," deprive the owner of the property, "so as to deprive the person of a major portion of the value or enjoyment [of it]." (Bacon, supra, at p. 1117; see People v. Aguilera (2016) 244 Cal.App.4th 489, 501-502 [the victim's husband assaulting the victim, then seizing and leaving with her phone so she could not call 911 deprived the victim of a major portion of its value].)
The element of specific intent to permanently deprive an owner of his or her property can be satisfied even when the defendant's primary purpose is not to deprive the owner permanently of possession (People v. Avery (2002) 27 Cal.4th 49, 55, 58 (Avery)) "when the nature of the property is such that even a temporary taking will deprive the owner of its primary economic value ._" (Id. at p. 56.) In Avery, the Supreme Court held that "the language in section 484, subdivision (a), referring to an intent to 'feloniously steal,' reasonably construed, adopted the common law intent requirement. That requirement, although often summarized as the intent to deprive another of the property permanently, is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment." (Id. at p. 58; see Bacon, supra, 50 Cal.4th at p. 1117.) Therefore, "the intent to deprive permanently is satisfied by the intent to deprive temporarily but for an unreasonable time so as to deprive the person of a major portion of the value or enjoyment." (Bacon at p. 1117; see also Avery, at pp. 52, 58.)
"The intent with which an act is done may be gathered from all the circumstances shown in evidence, and is a question of fact." (People v. Bateman (1959) 175 Cal.App.2d 69, 74.) The specific intent required to establish robbery under section 211 may be established by circumstantial evidence as well. (People v. Nichols (1967) 255 Cal.App.2d 217, 220.)
B. Analysis
Here, the record contains substantial evidence from which the jury could reasonably infer defendant's intent to temporarily, but for an unreasonable time, deny Carmen of a major portion of her cell phone's value and enjoyment. Accordingly, there is sufficient evidence to support defendant's jury conviction for first degree robbery. (See Avery, supra, 27 Cal.4th at pp. 55-56; see also Bacon, supra, 50 Cal.4th at p. 1117; see also Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1045.)
Defendant contends the evidence on the record does not support a reasonable inference that defendant intended to take Carmen's phone permanently or long enough to render it all but worthless.
The record shows defendant took Carmen's phone from her hands during a physical altercation after she told defendant he could not use it, which resulted in her falling to the ground, despite defendant's awareness of Carmen's health problems and limited mobility, and while she was still on the ground, he left with the phone and did not return. The evidence further shows that because he left with her phone, she was unable to call emergency services, and consequently had to drive herself to the police station once she was able to stand because she was afraid he would return. Last, the evidence shows that while defendant was in possession of Carmen's phone, he added a new passcode to it, and when his girlfriend returned the phone to Carmen the next day, he did not give her the new passcode, so the phone was rendered useless and Carmen had to replace it.
This evidence amounts to substantial evidence from which the jury could have reasonably inferred that defendant intended to take Carmen's cell phone away from her long enough to deprive her of a major portion of its value or enjoyment, including using the phone to call emergency services to report the incident and her injuries. Defendant's conduct that deprived Carmen of the opportunity to report the incident or call for help, as well as returning it with a new passcode which he did not tell her, resulting in the phone being permanently unusable, satisfies the requisite specific intent for robbery, regardless of whether defendant and Carmen lived together in Carmen's home, or whether defendant testified that on previous occasions when he used Carmen's phone, he had returned it.
Accordingly, because defendant took the phone from Carmen with the intention of taking it for "so extended a period [of time] as to deprive the owner of a major portion of its value or enjoyment," we conclude that sufficient evidence supports defendant's conviction for second degree robbery. (See Avery, supra, 27 Cal.4th at p. 55.)
II. COUNT 2
Defendant contends due process requires reversal of count 2 (endangering an elder; § 368, subd. (c)) because there is insufficient evidence that defendant inflicted pain or mental suffering on Carmen. The People disagree. We agree with the People.
A. Law
As stated above, due process requires the reversal of a criminal conviction unless sufficient evidence was adduced at trial to justify a rational trier of fact in finding guilt beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 318.) Where the evidence, viewed in the light most favorable to the state, is sufficient for the jury to infer the existence of the contested fact or circumstance, the challenge to the sufficiency of the evidence fails. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1149; People v. Lashley (1991) 1 Cal.App.4th 938, 944-945.)
Section 368, subdivision (c) provides in pertinent part, "A person who knows or reasonably should know that a person is an elder .. and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering ... is guilty of a misdemeanor...." (§ 368, subd. (c).)
"As used in [section 368], 'elder' means a person who is 65 years of age or older."
Section 368 may be applied to a "wide range of abusive situations, including . active, assaultive conduct," by which a defendant causes an elder to suffer "unjustifiable [physical] pain or mental suffering .." (People v. Heitzman (1994) 9 Cal.4th 189, 197; see People v. Racy (2007) 148 Cal.App.4th 1327, 1331-1332, 1334-1335; § 368.)
Pursuant to the Elder Abuse and Dependent Adult Civil Protection Act, mental suffering includes "fear, agitation, confusion, severe depression, or other forms of serious emotional distress .." (Welf. &Inst. Code, § 15610.53.)
No particular quantum of physical pain or mental suffering is required under section 368, so long as the pain or suffering is "unjustifiable." (§ 368, subd. (b)(1).)
B. Analysis
Here, there is sufficient evidence to support the jury's reasonable inference that defendant willfully inflicted unjustifiable physical pain and mental suffering on Carmen when he engaged in a physical altercation with her to take her phone from her hands, causing her to fall, as required by section 368, subdivision (c).
Defendant contends no substantial evidence shows defendant inflicted either physical pain or mental suffering on Carmen because she did not testify that she was in pain or endured mental suffering resulting from the incident. He argues that, although she testified that she suffered a "big bruise" on her leg, a scrape on her elbow, and a small cut on her hand, as a result of the struggle for her phone and the fall, and she went to the police station because she was "afraid" defendant would return to the home, these were only minor physical injuries and the degree and duration of her fear were not disclosed.
However, although Carmen did not expressly testify at trial that she suffered "physical pain" or "mental suffering," the evidence is sufficient to support the jury's reasonable inference that she suffered physical pain and mental suffering due to defendant's conduct, because the evidence shows his conduct caused her minor physical injuries and caused her to be afraid.
Carmen testified that when she told him he could not have her phone, "he pulled [the phone]," "we struggled, and I fell," which caused her to get a "big," "very bad bruise" on her right leg "all the way down my-to my calf to my upper part of my leg in the inside," a scraped elbow, and a small cut on her hand. Photographs of the injuries, taken by police after the incident, were entered into evidence. That evidence, in addition to evidence that Carmen was 68 years old and already suffered from various medical conditions of which defendant was aware, is sufficient to support the jury's reasonable inference that defendant willfully inflicted physical pain on Carmen, pursuant to section 368, subdivision (c). (See People v. Racy, supra, 148 Cal.App.4th at p. 1333 [that the victim's "knees [w]ere disabled" and he was of an age at which it is commonly known that risk of injuries from a fall are significant were relevant to the jury's finding that the defendant inflicted physical pain or suffering under circumstances likely to produce great bodily harm or death].)
As there is sufficient evidence to support a reasonable inference by the jury that defendant caused Carmen physical pain, mental suffering need not also be proven, as section 368, subdivision (c) only requires evidence of "unjustifiable physical pain or mental suffering." (§ 368, subd. (c), italics added.)
However, the evidence is also sufficient to support a reasonable inference by the jury that defendant willfully inflicted mental suffering on defendant. Carmen's testimony that, after defendant wrestled the phone from her hands and caused her to fall, she was so afraid he would return to the home that she went to the police station barefoot, supports a reasonable inference by the jury that defendant also willfully inflicted mental suffering upon her, as fear is a form of mental suffering. (See Welf. &Inst. Code, § 15610.53.)
There is no requirement that the evidence show the "degree or duration" of the fear. (See § 368, subd. (b)(1).)
Further, defendant's contention that it is "not apparent" from the evidence whether Carmen's fear of defendant was due to her fear of his possible return or fear of what had already occurred during the incident, is based only on speculation. Carmen testified that she "was still scared [after defendant left the home] because [she] was afraid he was going to come back in." However, she also testified that after defendant left the home with her phone, she got up and left the home "fast," despite being physically unable to run, by taking "big steps [to] just get out of the [home]." This evidence is sufficient to support a reasonable inference by the jury that Carmen suffered fear because of defendant's conduct when he wrestled the phone from her hands and caused her to fall, causing her to not want to be at the home if he returned.
Accordingly, we conclude the evidence on the record is sufficient to support the jury's reasonable inference that defendant inflicted pain and/or mental suffering on Carmen during the incident, as required to support its finding that defendant endangered an elder, pursuant to section 368, subdivision (c).
DISPOSITION
The judgment is affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and DeSantos, J.