Opinion
G044348 Super. Ct. No. 09CF1611
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE FELIPE REVELES-VILLEGAS, Defendant and Appellant.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Emily R. Hanks and James D. Dutton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part and reversed in part.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Emily R. Hanks and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Jorge Reveles-Villegas not guilty of assault of Noel Vasquez Gonzalez with a deadly weapon as charged in count one of the information, but guilty of simple assault and simple battery, lesser included offenses to the charged crime. Defendant was found guilty of assault with a deadly weapon of Reynaldo Gonzalez as charged in count two. The court suspended imposition of sentence and placed defendant on three years' formal probation, one of the terms and conditions of which was 150 days in jail.
Substantial evidence supports defendant's conviction on count two. There was no prosecutorial misconduct. The court did not abuse its discretion in refusing to reduce defendant's conviction to a misdemeanor. Defendant's conviction of simple assault is reversed because he was convicted of two lesser crimes (simple assault and simple battery) arising out of one count (assault with a deadly weapon). Otherwise, we affirm.
I
FACTS
In June 2009, Noel Vasquez Gonzalez (Gonzalez) was living with his younger brother Reynoldo Gonzalez (Reynaldo). Just after midnight on June 28, he heard noise around "where [his] car was parked." He looked out his bedroom window and saw three men trying to open his car. Gonzalez told them to "get out of there," but they didn't leave and told him "to shut up."
Gonzalez went outside to check on his car and again told the men to leave and that he was going to call the police. One of the men hit Gonzalez causing his nose to bleed. At that point, Gonzalez's brother came outside and directed Gonzalez to call the police, and another of the three hit Reynaldo on his head.
The man who hit Gonzalez was "face-to-face" with Gonzalez and Gonzalez pushed him in the chest. The man who was pushed struck Gonzalez with a knife, cutting his face. Gonzalez took off his belt and tried to hit the man who knifed him, but did not. Gonzalez called the police and was again hit, this time on his back.
Meanwhile the third man shot a paintball gun at Reynaldo. All three men then left in an older white car going northbound in the alleyway.
At trial, a recording of Gonzalez's 911 call was played to the jury. During the call, Gonzalez said: "Someone wanted to uh, steal my vehicle. I went out and they beat me up."
Gonzalez "had large amounts of blood on his face." An officer who came to the scene said Gonzalez appeared to be frightened. He was not angry, yelling or using profanity. The officer said: "I think he was shocked that blood was coming from his face and his shirt. . . . He just looked very concerned." Gonzalez described the man who punched him in the back of the head as "heavyset, male Hispanic, approximately [six feet two inches and] 220 pounds. Shaved head. Approximately 20 years of age." He described the man who used the knife as: "He said he was wearing a white T-shirt. He described him as a male Hispanic, thin. Approximately [five feet six inches]. I can't remember the exact weight that he put out, but but he said he was thin. And approximately 20 years of age, and also shaved head."
Reynaldo had orange paintball marks on his clothes and bare skin. It "hurts to get hit by a paintball." A welt under one of the splotches was forming on his shoulder when the police were taking his statement. Early in the morning of June 28, Gonzalez was able to look at bruises on his brother, and the brother had bruises "on his back and his rear end."
Defendant and Reyes picked up their pace as the police approached them shortly after the crimes. A knife was found near the curb where they were stopped. A paintball gun, paintballs, Samurai swords, batons and a knife were taken from the white vehicle parked close by where defendant and Reyes were walking when detained. The car was registered to Reyes and the hood was still warm.
Gonzalez was taken to a place where Joseph Reyes and defendant were detained. Gonzalez was not able to identify Reyes. But when defendant was shown to Gonzalez, Gonzalez immediately stated: "He's the one that punched me in the back of the head." At another location, Gonzalez identified James Hernandez as the man who knifed him. Both defendant and Hernandez matched the descriptions Gonzalez gave to the first officer on the scene.
Defendant, who weighs 235 pounds, told the police he had been to a party and "had 16 beers and shots of vodka." During trial, defendant said the party lasted three and a half hours, no food was served and the Anaheim "cops" arrived. After leaving the party, defendant and his group went to a 7-Eleven and "got more beer." Defendant also said during interrogation at the police station: "Okay. Yeah, I was in the alley. I met them. I saw the guys there. I saw two other guys from the party. And we met up. They offered me a beer. That was how I met them in the alley." He referred to the guys as Joe and James. By the time defendant got to the alley, he was sobering up. Defendant said he saw Hernandez urinating on a vehicle; and the owner of the car came out and started yelling at them. He admitted he saw Reyes shoot Reynaldo. Defendant admitted he put his hands on Reynaldo and pushed him away. Before he left the scene, defendant observed that Gonzalez was bleeding heavily from the face.
II
DISCUSSION
Sufficiency of Evidence
Defendant contends "there was insufficient evidence to establish [he] intended to aid and abet the assault with the paintball gun" to support his conviction on count two. The Attorney General argues reasonable inferences from the evidence show "this was a drunken assault, in concert, by [defendant], Hernandez and Reyes, against [Gonzalez] and Reynaldo."
"The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value— from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] '"[I]f 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."' [Citation.] 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury 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 jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt."' [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)
"Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. [Citation.]" (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.) "'"[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent of the target offense, which . . . must be found by the jury."' [Citation.]" (People v. Garcia (2008) 168 Cal.App.4th 261, 273.) "Whether a person has aided and abetted in the commission of a crime ordinarily is a question of fact. [Citations.]" (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)
Here defendant was involved in a group attack on two men. Reynaldo was hit on his head and Gonzalez's face was cut so badly, he was covered in blood. Defendant punched Gonzalez on the back of his head and observed Reyes shoot Reynaldo. Defendant then fled the scene. Under the circumstances in this record, we conclude there was sufficient evidence for a jury to reasonably find defendant intended to and did aid and abet the shooting of Reynaldo with a paintball gun.
Alleged Prosecutorial Error
Defendant contends misconduct by the prosecutor denied him a fair trial and requires reversal. Specifically, he argues the prosecutor "improperly asked the jury to consider punishment by informing them the judge would treat principals and aiders and abettors very differently at sentencing." The Attorney General counters that this issue was forfeited because there was no objection at trial, the prosecutor's argument did not amount to error, and, even if there was error, defendant was not prejudiced.
What the prosecutor said was: "Under the law a person is equally guilty of the crime whether he committed it personally or aided and abetted. We talked about this during voir dire. The punishment might be very different for an aider and abettor than for a perpetrator. [¶] Punishment is based off of a person's actual acts, but punishment is left up for the judge. As jurors your sole job is to figure out what happened and decide if the defendant is guilty of aiding and abetting these two assaults with deadly weapons, and leave Judge Paer the decision of how to sentence him according to his level of participation or his role."
There was no objection that day. But the next morning, defense counsel stated to the court: "Your Honor, yesterday during the argument, the People's argument, the prosecutor mentioned to the jury, just like in jury selection, that the jury was not to consider penalty or punishment, and that's correct. We have jury instructions that tell us that. But then the prosecutor went onto, in my view, ask them to consider penalty and punishment by informing them, and I am paraphrasing now because I don't have a copy of the record, that the judge can, if necessary, at sentencing time consider the difference between principals and aiders and abettors. In other words, treat different parties differently. That a judge at a time of sentencing can consider individual's background, their circumstances, or whatever the language was. [¶] In my view that's an invitation to the jury to simply say let's convict this guy and get out of here because if there's a mistake or we are wrong, doesn't matter. The judge is going to clean it up. I think that that is improper. I think the jury ought to be — humbly, I think the jury ought to be informed that those are inappropriate comments. And when the instruction tells us you reach your verdict without any consideration of punishment, that's what it means. They shouldn't even be introduced to the notions that the court has other avenues available. It would be like me saying, your Honor, you can't consider penalty or punishment in this case in which there are two strikes at issue. That would be I think wildly inappropriate. But I don't think it's any different. [¶] So I bring that to the court's attention. I didn't object yesterday. Probably — because I was stunned. . . . But I think at least my record has to be real clear that I am bringing it to the court's attention and asking for a remedy."
The court asked what counsel was requesting. Defense counsel responded: "At a minimum, that the court inform the jury that that type of argument, that while there's a lot of latitude in argument, that that's not a part of it. That the instruction means what it says and that they should not have been, frankly, introduced to the notion that the judge can do a lot of different stuff and begin to enumerate what those things are." The court heard from the prosecutor who said the remarks were not improper. The court made numerous comments and concluded: "Your objection is noted and overruled at this point."
Later the same day, the court instructed the jury with CALCRIM No. 3550, which included the language: "You must reach your verdict without any consideration of punishment." Earlier in the trial, the court read the same language to the jury when it instructed on CALCRIM No. 101. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions. [Citation.]" (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.)
Placed in context, the prosecutor's argument was that a person is equally guilty whether or not the crime is personally committed or aided and abetted. In that context, the jury was told the judge decides the punishment. Unlike in People v. Holt (1984) 37 Cal.3d 436, 457, where the prosecutor mentioned a parole date, the prosecutor here did not reference parole, probation or any possible sentence. Under the circumstances found in this record, we cannot find prosecutorial misconduct.
Although we do not find prosecutorial misconduct, we decide whether or not, if there had been misconduct, defendant was prejudiced by it. "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.) The court clearly told the jury not to consider penalty or punishment. The prosecutor's statements were brief. The evidence against defendant is strong. This was not a close case. Under these circumstances, we conclude it is not reasonably probable a result more favorable to defendant would have been reached had the prosecutor not made the challenged statements, and defendant was not prejudiced.
Alleged Abuse of Discretion
Defendant next claims judicial error because "the trial court abused its discretion by refusing to reduce count two to a misdemeanor pursuant to Penal Code section 17(b)." He adds that "at worst [defendant's] actions amounted to misdemeanor conduct."
"(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (Pen. Code, § 17, subd. (b)(3).)
"[S]ection 17(b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely 'in the discretion of the court.' By its terms, the statute sets a broad generic standard. [Citation.] The governing canons are well established: 'This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]' [Citation.]" (People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 977.)
Gonzalez was bleeding profusely as a result of this frightening and brutal attack. Reynaldo suffered pain from his injuries and was developing a welt as the officer at the scene questioned him. This was not misdemeanor conduct. We cannot find the trial court abused its discretion.
Lesser Included Offense
Lastly, defendant argues "the jury improperly found [him] guilty of simple assault and simple battery as lesser included offenses of count one." The Attorney General agrees. "In this state, multiple convictions may not be based on necessarily included offenses arising out of a single act or course of conduct. [Citations.]" (People v. Lewis (2008) 43 Cal.4th 415, 518.) Both parties also agree defendant's conviction for the lesser included offense of simple assault on count one should be reversed. We agree, too.
III
DISPOSITION
Defendant's conviction of simple assault is reversed. In all other respects the judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.