Opinion
E072628
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WILLIAM MORALES, Defendant and Appellant.
Aaron J. Schechter, 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, A Natasha Cortina and Michael Cosgrove, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1603611) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed with directions. Aaron J. Schechter, 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, A Natasha Cortina and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court consolidated three cases against defendant and appellant Joseph William Morales. A jury found defendant guilty of (1) second degree murder (Pen. Code, § 187, subd. (a)); (2) three counts of assault with a deadly weapon (§ 245, subd. (a)(1)); and (3) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury found true the allegation that defendant personally used a deadly and dangerous weapon, specifically a knife, during the murder. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The trial court found true the allegations that defendant suffered (A) two prior strike convictions (§ 667, subds. (c)&(e)(2)); and (B) two prior convictions for which defendant served prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a determinate term of five years and an indeterminate term of 120 years to life.
All subsequent statutory references will be to the Penal Code unless otherwise indicated. --------
Defendant raises three issues on appeal. First, defendant contends substantial evidence does not support his count 5 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)). Second, defendant asserts the trial court erred by consolidating the three cases. Third, defendant contends the one-year prison terms for the prison priors (§ 667.5, subd. (b)) should be stricken. We modify defendant's sentence and provide directions, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In this section we present only the facts related to Count 5. On February 13, 2018, at approximately 7:30 p.m., a fight occurred in dayroom-F of housing unit 15 at the Larry D. Smith Correctional Facility in Banning. Three surveillance cameras recorded the altercation. At the time there were approximately 30 inmates in the dayroom.
Dayroom-F has tables located in the middle of the room, a television along the wall to the right, three telephones along the wall to the left, and a row of jail cells in the back of the room. Prior to the fight, defendant was sitting at a table near the television side of the room. Christopher Coleman (the victim) was using one of the telephones. Defendant and the victim "were kind of looking back towards each other. The defendant then stands up from the table, removes his sandals with both hands, grabs the front of his waistband from his jail-issued jumpsuit, pulls it forward, reaches into his waistband, then proceeds to go down the middle of the tables towards [the victim]."
When defendant reached the victim, defendant punched the victim's face repeatedly with both hands. The victim stood and tried to move away. Defendant continued punching the victim "and then the punches went into an overhand striking motion." Defendant struck the victim's back, head, and face. At that point, "all of the inmates in the dayroom began fighting with one another." The fighting lasted several minutes. Deputies deployed chemical ammunitions, which temporarily stopped the fighting.
When the fighting temporarily stopped, the inmates laid on the ground as instructed by deputies. When instructed to lay on the ground, defendant "walked over towards the furthest left side of the dayroom . . . next to Cell 1581. [¶] . . . . [¶] Once he got to that point, he knelt down, looked towards the dayroom, [and] looked back towards cell 1581. He laid down and it appeared that he placed something in between— it's a small crack in between the Cell 1581 and the visiting door. Once he did that, he proned out on the ground, turned his body to where his facing was [sic]—his head was facing towards the dayroom, and then low-crawled towards another group of inmates that were already on the ground."
Then, "defendant stands up, the rest of the inmates stand up, and then they go towards the other inmates that were closest to the dayroom slider and they start hitting them again." Deputies deployed more chemical ammunitions, additional deputies arrived, and the fighting ended. The inmates were removed from the dayroom. After the inmates left the dayroom, five "shanks [were] located throughout the dayroom." One shank was found between cell 1581 and the visiting door. On the video recording of the fight, no one other than defendant went to the area by cell 1581.
Among other injuries, the victim suffered a stab wound in "[t]he middle of his back with the tip portion of the shank broken off in his back." Two photographs were taken of the victim's stab wound, with the broken tip inside the wound. In the photographs, the broken end of the shank tip is flush with defendant's skin—not sticking out. The broken piece appears to have a core that is a "light wooden color" with a black outer rim, around the wooden color. The shank that was found between cell 1581 and the visiting door was black. It appeared the shank had been painted black.
Riverside County Sheriff's Correctional Corporal Joel Grajeda watched the video recordings of the fight. It was not explicitly clear in the videos that defendant stabbed the victim. However, Grajeda inferred that defendant stabbed the victim "based on the body movement and the overhand method of striking, coupled with the fact that [defendant] went to that location of the dayroom and the shank was found there."
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support his conviction for assaulting the victim with a deadly weapon (§ 245, subd. (a)(1)).
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' " (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
" ' " '[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " '
" ' " ' "The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence [Citation.] ' "Although it is the duty of the [trier of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' " ' " ' " (People v. Jones (2018) 26 Cal.App.5th 420, 441-442.)
In a video, defendant is seen reaching into his waistband as he approaches the victim. One can reasonably infer from this evidence that defendant reached into his waistband to retrieve an object. Defendant struck the victim's back, using an "overhand striking motion." This evidence supports a finding that defendant struck the victim's back in a stabbing motion.
Defendant appeared to place an object between cell 1581 and the visiting door. Defendant then low-crawled away from the area. This evidence supports a finding that defendant left an object between cell 1581 and the visiting door and that it was an object defendant should not have possessed, hence crawling away from it. A shank that was painted black was found between cell 1581 and the visiting door. Defendant was the only person that was near cell 1581. That evidence indicates the shank belonged to defendant because (1) defendant left an object near cell 1581, and (2) defendant was the only person near cell 1581.
The victim was stabbed with a shank, and the tip of the shank remained in the stab wound. Two photographs of the wound reflect the tip of the shank has a thin outer black rim and core that is "a light wooden color." The shank that was found near cell 1581 appeared to have been painted black. Because the shank near cell 1581 appeared to have been painted black and the tip of the shank that was left in the victim's back had a black outer rim, one could reasonably infer that the shank near cell 1581 was the same shank used to stab the victim.
In sum, defendant reached into his waistband to retrieve an object, and, based upon the evidence, one could reasonably conclude that object was a shank. Defendant then made a stabbing motion when striking the victim's back, and the victim suffered a stab wound in his back. One could reasonably infer that defendant stabbed the victim with the shank. Therefore, there is substantial evidence supporting a finding of assault with a deadly weapon.
Defendant contends, "The only 'evidence' that [defendant] supposedly stabbed [the victim] with a shank is Grajeda's purely speculative opinion from having watched the videos himself. [Citation.] But the videos merely show that [defendant] assaulted [the victim] using his hands. [Citation.] Simply put, the videos do not depict [defendant] ever having possession of a shank, let alone using a shank to stab [the victim]. [Citation.] Therefore, there was not substantial evidence from which the jury could find [defendant] guilty beyond a reasonable doubt on count five."
" 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
We have explained ante how one could view the following evidence as justifying the jury's verdict: (1) in the video, defendant is seen reaching into his waistband as he approaches the victim; (2) defendant struck the victim's back using an "overhand striking motion"; (3) defendant appeared to place an object between cell 1581 and the visiting door; (4) defendant was the only person near cell 1581; (5) the shank that was found near cell 1581 appeared to have been painted black; and (6) the piece of shank left in the victim's back appeared to have a thin outer black rim with a core that was "a light wooden color." Because the foregoing evidence supports the jury's finding that defendant used a deadly weapon when attacking the victim, we do not reverse the judgment.
B. CONSOLIDATION
1. FACTS
a. Procedural History
The trial court consolidated two of defendant's cases with the case concerning the February 13, 2018, stabbing of the victim. The other cases involved: (1) the murder of Mike Miller on July 23, 2016; (2) an assault on Curtis Tegeler on the night of July 22, 2016; (3) an assault on Tegeler on July 23, 2016; and (4) an assault on Jason Gogolin on September 26, 2017.
b. July 2016
In July 2016, Kenneth Hagerman owned a house in Riverside that was situated on a property that measured approximately 1.25-acres. Hagerman and his girlfriend Amber Tombyll lived together in the house, sharing a bedroom. Bruce Allen also lived in the house, using a different bedroom. Defendant lived under a tarp on the side of the house. Sean Lowry lived in a motorhome that was on Hagerman's property. Mike Miller lived "in a U-Haul trailer in the back of the property." Curtis Tegeler lived at Hagerman's property with his girlfriend, Megan Richardson.
On the night of July 22, 2016, near midnight, Tegeler and Richardson argued with one another. During the argument, defendant "came running from the side of house" and swung a knife at Tegeler two times. The knife was "10 to 12 inches long with the handle." Tegeler entered his "truck . . . and took off." Defendant and Richardson left the property in another vehicle. Tegeler returned to the house that night and locked the gate so defendant could not enter the property.
The following day, on July 23, Tegeler, Miller, and Lowry had a conversation. They agreed that if defendant returned to the property then they would ask him to leave "[b]ecause he had been stabbing people more than one time." Tegeler explained, "He's always got a knife in his hand."
At approximately noon, defendant and Richardson returned to the property. While in the front yard, Tegeler, Miller, and Lowry asked defendant to leave the property. Defendant "kept saying he wasn't going to leave." With the exception of Lowry, the men moved into the house to "wait[] for [Hagerman] to get home to call the police." Lowry returned to his motorhome. While in the house, "Tegeler got on [his] phone and [defendant] started tripping out, saying that [Tegeler was] calling the cops and shit." Defendant was "getting all loud and, [w]hat are you calling the fucking police, and stuff like that."
Defendant stood up "acting like he was going to come towards [Tegeler], and [Miller] went to get him." Defendant lunged and removed a knife from his pocket. Miller, who was armed with a crowbar, tried to protect Tegeler. Miller used the crowbar to push defendant outside, through a doorway. Lowry heard a female yell, "Joey, no." Defendant's name is Joseph, and he goes by Joey. When Tegeler went outside 30 seconds later, Miller said "He stabbed me; get him." Miller fell to the ground. Defendant ran away with the knife in his hand. Paramedics were unable to revive Miller and Miller was pronounced dead.
c. September 2017
On September 26, 2017, defendant was incarcerated in a Riverside County jail. On that day, defendant was in housing unit 17, which has six dayrooms that were connected by hallways. "[T]he dayrooms go out kind of like spokes of a wheel." There is a pod in the center of the wheel where deputies watch over the inmates. A health care worker asked to see an inmate, Jason Gogolin, who was in dayroom-C. The health care worker was inside the pod, with the deputies. Gogolin was called out to the pod to speak with the health care worker. After Gogolin exited dayroom-C, the door to dayroom-C closed.
Defendant was in dayroom-D. Defendant was the trustee for dayroom-D, which meant he had more responsibilities than other inmates. Defendant said he needed to speak to one of the correctional deputies. Therefore, the door to dayroom-D was opened so defendant could approach the pod. After exiting dayroom-D, defendant "proceeded to walk right up next to Mr. Gogolin." Defendant "grabbed [Gogolin] with his left hand and punched him multiple times in his face, back of the head, wherever he could get him." Gogolin fell to the ground. Defendant continued punching Gogolin and kicked him. Another inmate joined the fight, assisting defendant.
A deputy deployed pepper spray and then a larger canister of pepper spray, but the fight continued. A different deputy deployed a taser, which struck defendant and the inmate who was assisting defendant. At that point, the fight ended. Gogolin was taken to the jail medical office, but his injuries were too severe for treatment in the jail, so he was transported to a hospital.
2. ANALYSIS
Defendant contends the trial court violated his right of due process by consolidating defendant's three cases because the case concerning the February 13, 2018, stabbing of the victim was "much weaker" than the other two cases.
"An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." (§ 954.) "[Consolidation] is ordinarily favored because it avoids the increased expenditures of funds and judicial resources that may result from separate trials. [Citation.] [Consolidation], therefore, 'is the course of action preferred by the law.' " (People v. Simon (2016) 1 Cal.5th 98, 122.)
"[E]ven if the trial court's [consolidation] ruling was proper as a matter of state law, [an appellate court] will reverse the judgment if the defendant shows that [consolidation] of the charges actually resulted in 'gross unfairness' amounting to a denial of due process during the guilt phase." (People v. Simon, supra, 1 Cal.5th at p. 123.) "In determining whether [consolidation] resulted in gross unfairness, [our Supreme Court has] observed that a judgment will be reversed on this ground only if it is reasonably probable that the jury was influenced by the [consolidation] in its verdict of guilt." (Id. at p. 130.) "The core prejudice concern arising in connection with [the issue of consolidating an allegedly weak case with an allegedly strong case] is that jurors may aggregate evidence and convict on weak charges that might not merit conviction in separate trials." (Id. at p. 127.)
The evidence establishing defendant's assault upon the victim was circumstantial, but the circumstantial evidence was strong. A video recording showed defendant reaching into his waistband, approaching the victim, striking the victim with a stabbing motion, going to cell 1581, and being the only person near cell 1581. A deputy found a shank that was painted black near cell 1581. The victim had a piece of a shank, that had a black outer rim, left in his back after being stabbed.
Although there was not direct evidence of defendant stabbing the victim, the circumstantial evidence leaves little room to doubt that it was defendant who stabbed the victim. Accordingly, we are not persuaded that the evidence pertaining to the February 2018 assault was weak. As a result, there was no need for the jury to aggregate evidence from defendant's other crimes in order to convict him of assaulting the victim. In sum, the trial court did not violate defendant's right of due process by consolidating the cases.
Defendant asserts the evidence related to the February 2018 assault was weak because "the People had no credible evidence establishing that [defendant] committed assault with a deadly weapon on February 13, 2018. [Citation.] Indeed, the evidence—and the reasonable inferences drawn therefrom—in no way show that [defendant] stabbed [the victim] with a shank." As set forth ante, the prosecution presented a strong circumstantial case that defendant stabbed the victim. Because the circumstantial evidence was strong, there was no need for the jury to aggregate the evidence from defendant's other crimes. In sum, we find defendant's argument to be unpersuasive.
C. SENTENCE
1. PROCEDURAL HISTORY
At defendant's sentencing, the following exchange occurred:
"The Court: Thank you. [¶] All right. [Defendant], you are a violent person. You killed a man, and you continued your violence while in jail during the outcome of this case. You like to stab people. You stabbed and killed someone, and while you're doing time in jail, you're trying to stab people.
"The Defendant: And I'll probably do it again.
"The Court: You are a violent person. Your history shows you are a violent person.
"The Defendant: It happens sometimes. That's probably going to happen again while in jail.
"The Court: Society is not going to los[e] any sleep over you.
"The Defendant: I'm not worried about society.
"The Court: I'm not going to lose sleep over you.
"The Defendant: Of course not. Nobody is. Just give me the maximum. Let's do this."
The trial court imposed consecutive one-year prison terms for each of defendant's two prison priors, for a total of two years. (§ 667.5, subd. (b).) The trial court sentenced defendant on April 24, 2019.
2. ANALYSIS
Effective January 1, 2020, section 667.5, subdivision (b), was amended to read, "[T]he court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." Prior to January 1, 2020, a one-year prison term was mandatory for "each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170." (Prior § 667.5, subd. (b) [eff. Jan 1, 2019].) In other words, the law has changed so that now, a one-year prison sentence is only imposed when the prison prior was for a sexual offense. (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
Defendant contends this court should strike the two one-year prison terms because his prison priors are not for sexual offenses. The People concede the prison priors should be stricken. Defendant's prison priors consisted of (1) auto theft with a prior conviction (§ 666.5); and (2) theft of a vehicle or driving a vehicle without the vehicle-owner's permission (Veh. Code, § 10851). Neither of defendant's two prison priors were for sexual offenses. Accordingly, we will strike the two one-year terms for the two prison priors (§ 667.5, subd. (b)).
D. FEES
1. PROCEDURAL HISTORY
On April 24, 2019, at defendant's sentencing hearing, the trial court said, "The Court will order a restitution fine in the amount of $52,500. The Court will also order a parole revocation fine of $10,000. It's suspended if his parole is revoked, and the Defendant's ordered to pay a criminal assessment fee of $150 per charge." Defendant's original determinate abstract of judgment listed the restitution fine as $10,000 (§ 1202.4) and left blank the line pertaining to a parole revocation fine (§ 1202.45). Defendant's notice of appeal reflects he is appealing from a judgment entered on April 24, 2019. Defendant's notice of appeal was filed on April 26, 2019.
On August 2, 2019, in the trial court, defendant filed an informal motion to correct the fines and fees. In the motion, defendant cited section 1237.2, which provides, "An appeal may not be taken by the defendant from a judgment of conviction on the ground of an error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the imposition or calculation of fines, penalty assessments, surcharges, fees, or costs upon the defendant's request for correction. This section only applies in cases where the erroneous imposition or calculation of fines, penalty assessments, surcharges, fees, or costs are the sole issue on appeal."
In his informal motion, defendant also cited People v. Duenas (2019) 30 Cal.App.5th 1157 and asserted his "restitution fine should be stayed and the remainder of the fees reversed pending a finding by [the trial] court that the prosecution has proven that [defendant] has an ability to pay."
On August 2, 2019, the trial court, without the presence of the parties or a court reporter, granted the informal motion "[p]ursuant to Duenas." The court ordered defendant to pay a restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)), but stayed execution of the fine. The court waived the $40 court operations fee (Pen. Code, § 1465.8) and the $30 court facilities fee (Govt. Code, § 70373).
On August 6, 2019, the trial court filed a determinate abstract of judgment for defendant that omitted any fines or fees. On August 26, 2019, the trial court filed a determinate abstract of judgment that included a $10,000 restitution fine (§ 1202.4). On September 12, 2019, the trial court filed a determinate abstract of judgment that omitted any fines or fees.
2. ANALYSIS
The People contend the trial court lacked jurisdiction to modify defendant's fines and fees while this appeal was pending. In the People's respondent's brief they write, "The trial court did not have jurisdiction to stay the fines and fees because [defendant's] appeal addresses more than just a correction to fines and fees." The People rely on section 1237.2, which is set forth ante.
A defendant may appeal from "a final judgment of conviction." (§ 1237, subd. (a).) Additionally, a defendant may appeal "[f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).) The People may also appeal from "[a]n order made after judgment, affecting the substantial rights of the people." (§ 1238, subd. (a)(5).)
"Generally, an order after judgment is appealable separately from the judgment itself." (People v. Denham (2014) 222 Cal.App.4th 1210, 1213.) For example, when a trial court holds "a postjudgment hearing on victim restitution . . . , the resulting order setting the amount of victim restitution bec[omes] an order after judgment that [is] appealable separately from the judgment itself." (Id. at pp. 1213-1214.)
The People did not file a notice of appeal or notice of cross-appeal. The issue of whether the trial court had jurisdiction to conduct a Duenas hearing and modify fines and fees after defendant's notice of appeal had been filed is a postjudgment issue. In other words, the People's issue with a postjudgment order pertaining to the amount of fines and fees, is not encompassed by defendant's notice of appeal from the judgment. Accordingly, because this matter is not properly before us, we decline to address the merits of the People's contention.
To the extent the People intended to assert only that the abstract of judgment should be corrected to reflect the trial court's April 24, 2019, order for fines and fees, we cannot correct such an alleged error because the trial court modified the April 24, 2019, order on August 2, 2019, and no appeal has been taken from that August 2nd modification.
DISPOSITION
The two one-year prison terms for the two prison priors (§ 667.5, subd. (b)) are stricken. The trial court is directed to issue an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.) In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.