Opinion
H042713
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANGEL SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1481068)
Defendant Jose Sanchez appeals from a judgment entered after a jury found him guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2) - count 1), criminal threats (§ 422 - count 2), and elder abuse (§ 368, subd. (b)(1) - count 3). The jury also found that defendant had personally used a firearm in the commission of each offense (§ 12022.5). The trial court sentenced defendant to six years in prison. On appeal, defendant contends: (1) he was deprived of due process of law when the trial court instructed the jury to draw inferences from evidence proved only by a preponderance of evidence; (2) the sentence on count 2 must be stayed under section 654; and (3) the matter must be remanded to allow the trial court to consider whether to exercise its discretion to strike the section 12022.5 enhancement. The judgment is reversed.
All further statutory references are to the Penal Code.
I. Statement of Facts
A. Prosecution Case
Gregoria Sanchez lived with defendant, who is her son, in San Jose. At the time of trial, she was 71 years old and defendant was 32 years old. On April 13, 2014, Officer Nicholas Barry was dispatched to the Sanchez residence to investigate a disturbance involving a gun. He spoke to Sanchez, who was "obviously scared or upset, crying, kind of shaking . . . at times." She told him that defendant had pointed a gun at her and said, "I want to kill you, [b]itch." Defendant was arrested and a loaded gun was found in the garage. Officers also found three magazines loaded with .45 caliber ammunition in the living room and in defendant's bedroom. Officer Erin Arana recorded a statement from Sanchez, who appeared afraid and upset. The taped statement was played for the jury.
Sanchez testified that she was not afraid of defendant. Defendant never said that he was going to kill her. She denied that defendant threatened her with a gun or a knife. She did not tell either Maria Ramos, Martha Villanueva, or Rita Chavoya that he did so. Defendant has never yelled or swore at her, called her names, or locked her out of her house. She never told Chavoya that she was scared about the way he was treating her. She did not tell Ronald Dillon that defendant had threatened her with a knife. She never met with anyone from Adult Protective Services or spoke to any police officers. Sanchez denied talking with Villanueva, Ramos, or Kathryn Lyne, her neighbor on the day of the incident.
Dillon, one of Sanchez's neighbors, called the police at her request. Sanchez told Dillon that defendant was going to kill her. Dillon identified the 911 call and it was played for the jury.
Early on the morning of April 13, 2014, Lyne walked by Sanchez's house and heard at least one male voice through the open front door. She later saw Sanchez, who was crying and upset, at Dillon's home. Sanchez told Lyne that defendant had pointed a gun at her head and threatened to kill her. Sanchez had previously told her that defendant used profanity and called her names. Defendant had also told Sanchez to leave the house. According to Lyne, Sanchez was upset about the way that defendant was treating her. Sanchez told Lyne that defendant had pushed her, had locked her out of the house, and had threatened to cut her tongue out.
Aida Tavarez, a Pretrial Services employee in the jail, spoke with Sanchez on the evening of April 13, 2014. Sanchez told her that she was afraid defendant would harm her if he was released. Defendant had a firearm and multiple knives, had previously threatened to cut her tongue off, had threatened her with a gun in a prior incident, and was verbally abusive.
Chavoya testified that Sanchez is her younger sister. On April 13, 2014, Sanchez, who was crying, called her and told her that defendant had put a gun in her face and threw her out on the street. Chavoya spoke with Sanchez later that afternoon and Sanchez told her again that defendant had threatened her with a gun. Sanchez told Chavoya that defendant called her a slut or whore and said, "Go fuck yourself." He also called Sanchez a wetback and told her "to just fuck off and go away." Sanchez had been telling Chavoya about the mistreatment for more than five years. On one occasion, defendant threw Sanchez out of her house and she slept in her car. Sanchez told her that defendant had a gun in the house and he carried it around all day, which scared her. Sanchez also told her that he was going to kill her. When Sanchez told him to stop, he mistreated her. Defendant told Sanchez that if the police showed up, he was going to kill everybody and himself. Sanchez told Chavoya that she did not know what to do because defendant was monitoring her phone calls and she felt afraid to answer the phone when defendant was at home. Defendant controlled the use of the phone by taking it with him.
Ramos testified that Sanchez is her aunt and she spoke with her on the day of the incident. Sanchez, who was crying, told her that defendant had pointed a gun at her and said he was going to kill her. Sanchez was very afraid and ran out of her house. When Ramos asked Sanchez if she wanted her locks changed, she said yes. Ramos helped Sanchez clean up her house. Ramos picked up defendant's knives in his bedroom and in the living room and gave them to the police. Sanchez told Ramos that he had threatened her with these knives and called her "[s]tupid, dumb, idiot," and "[b]itch." Sanchez was concerned because defendant always had his gun with him. Defendant threatened to cut Sanchez's tongue out and to poke her eyes out with a screwdriver. In late October or early November 2013, Ramos called Adult Protective Services on Sanchez's behalf.
Villanueva testified that Sanchez is her aunt. On April 13, 2014, she went to Sanchez's home. Sanchez was very upset, crying, and shaking. Sanchez told Villanueva that she had to run out of the house because defendant had pointed a gun at her head and had threatened to kill her. Sanchez stated that they had been arguing and defendant had thrown a knife and a screwdriver down the stairs. Defendant then came down the stairs and threatened her with the gun. Defendant also threatened to cut her tongue out and poke her eyes out. He had knives in the house and threatened to use them on her. Sanchez was always afraid to do or say anything and defendant had told her that he would kill anyone who came to help her.
Julie Aguilar-Thomas, a social worker for Adult Protective Services, was first assigned to Sanchez's case in December 2013, but was unable to make contact with Sanchez at that time. When the case was again referred to her in March 2014, Sanchez was reluctant to provide information. However, in April 2014, Sanchez wanted a permanent restraining order against defendant.
In March 2014, Officer Victor Rodriguez conducted a welfare check at Sanchez's residence. Sanchez told him that defendant had locked her out of her house and she was afraid of him. Defendant was not at the home at that time and Sanchez did not want to report the incident. Sanchez also told the officer that she had been locked out of her residence a "few times."
B. Defense Case
Sergio Oliveri lived with defendant and Sanchez from late 2003 to the beginning of 2006. According to Oliveri, defendant was respectful to Sanchez and never threatened her or cursed at her. Oliveri opined that defendant was not a violent person.
Nathaniel Robinson has known defendant since second grade. He lived with defendant and Sanchez for a year in 2006. He never saw defendant be disrespectful to Sanchez, threaten her, or display knives or a gun to her. Robinson opined that defendant was not a violent person.
Kathleen O'Reilly lived next door to Sanchez. She never heard raised voices coming from Sanchez's home or saw her locked out of it.
II. Discussion
A. Jury Instructions
Defendant contends that the jury instructions on evidence of uncharged conduct violated his right to due process of law, because they permitted the jury to draw inferences from evidence proved only by a preponderance of evidence. He contends that evidence of uncharged conduct is a form of circumstantial evidence and that a jury may not use circumstantial evidence to draw an inference supporting guilt unless the circumstances have been proved beyond a reasonable doubt. The trial court instructed the jury pursuant to CALCRIM Nos. 375 and 853. Defendant acknowledges that the California Supreme Court has approved instructions that permit the jury to apply the preponderance of the evidence standard to other crimes evidence. (People v. McClellan (1969) 71 Cal.2d 793, 804; People v. Medina (1995) 11 Cal.4th 694, 763.) But he argues that the court has not considered "the constitutionality of permitting a jury to draw inferences regarding guilt from evidence proved by no more than a preponderance."
Pursuant to CALCRIM No. 375, as modified, the trial court instructed the jury: "The People presented evidence of other behavior by the defendant that was not charged in this case. Defendant threatened to cut Gregoria Sanchez's tongue out; threatened to poke Gregoria Sanchez's eye out; cursed at Gregoria Sanchez; called Gregoria Sanchez insulting names; carried a loaded gun in the house [ ]; loaded a firearm in front of Gregoria Sanchez while in the house [ ]; pulled the telephone at [the house] out of the telephone jack; monitored the telephone calls at [the house]; locked Gregoria Sanchez out of the house [ ]. . . . [¶] . . . Told Gregoria Sanchez to get out of the house [ ]; threatened to blow up Gregoria Sanchez's car; threatened if Gregoria Sanchez called the police, he would kill her, the police or anyone who came to the house [ ]. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the charged acts. [¶] Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance [of the] evidence if you conclude that it more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged acts, you may, but are not required to, consider that evidence for the limited purposes of deciding whether or not . . . the defendant acted with the intent that was described in jury instructions number 1300, that his statements to Gregoria Sanchez on April 13th, 2014, be understood as a threat or accident, the defendant's alleged conduct on April 13th, 2014, were the result of a mistake or accident or other purpose, that the defendant's alleged threats on April 13th, 2014, actually caused Gregoria Sanchez to be in sustained fear for her own safety as described in jury instructions 1300 or the defendant's alleged conduct on April 13th, 2014, inflicted unjustifiable mental suffering on Gregoria Sanchez as described in jury instruction 830. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. [¶] Do not consider this evidence for any other purpose, except for the limited purpose described in jury instruction 853. If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count[] 1, Count 2 or Count 3 or the allegations or the lesser-included offense to Count 3. The People must still prove each element of every charge and allegations beyond a reasonable doubt."
Pursuant to CALCRIM No. 853, as modified, the trial court instructed the jury: "The People presented evidence that the defendant committed abuse of an elder that was not charged in this case, specifically defendant threatened to cut Gregoria Sanchez's tongue out; threatened to poke Gregoria Sanchez's eyes out; cursed at Gregoria Sanchez; called Gregoria Sanchez insulting names; pulled the telephone at [the house] out of the telephone jack; monitored the telephone calls at [the house]; locked Gregoria Sanchez out of the house [ ]; told Gregoria Sanchez to get out of the house [ ]. [¶] Abuse of an elder means treatment that results in physical harm or pain or mental suffering. An elder is a person residing in California who is age 65 or older. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged abuse of an elder. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the uncharged abuse of an elder you may, but are not entitled to, conclude from the evidence that the defendant was disposed or inclined to commit abuse of an elder, and based on that decision also conclude that the defendant was likely to commit and did commit Count 1, Count 2 and Count 3, and the allegation and/or the lesser-included offense to Count 3 as charged here. [¶] If you conclude the defendant committed the uncharged abuse of an elder, that conclusion is only one factor to consider along with all the other evidence. [¶] It is not sufficient by itself to prove that the defendant is guilty of Count[] 1, Count 2, Count 3 or the lesser included offense to Count 3 and the allegations. The People must still prove each element of every charge beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose except for the limited purpose described in instruction 375."
In People v. Virgil (2011) 51 Cal.4th 1210 (Virgil), the trial court instructed the jury regarding evidence of other crimes pursuant to CALJIC No. 2.50.1. The Virgil court rejected the defendant's argument that the instruction " 'failed to convey the jury's need to find Mr. Virgil's guilt for the uncharged crimes beyond a reasonable doubt before those crimes could be used as an inference in establishing his identity as the perpetrator of the charged offenses . . . .' The premise of defendant's claim fails because 'we have long held that "during the guilt trial evidence of other crimes may be proved by a preponderance of the evidence . . . ." [Citations.] The "beyond a reasonable doubt" standard is applicable only to evidence of "other crimes" sought to be admitted as aggravating evidence at the penalty phase of trial. [Citation.]' [Citations.]" (Virgil, at p. 1259.) The Virgil court further stated: "Despite our long adherence to this rule, defendant urges us to reconsider the standard of proof set forth in the uncharged conduct instructions because, he asserts, this court 'has not adequately addressed the conflict between the circumstantial evidence instruction [CALJIC No. 2.01],' which requires proof beyond a reasonable doubt of each essential fact in the chain of circumstances necessary to establish guilt, and CALJIC No. 2.50, which permits consideration of uncharged crimes if they are proven by only a preponderance of the evidence. We have explained before, however, that these different standards of proof are reconciled by the different purposes for which the evidence is used. When evidence of uncharged misconduct is admitted for the purpose of establishing identity or intent, we have explained that the crimes are mere 'evidentiary facts.' [Citation.] The jury cannot consider them at all unless they find them proven by a preponderance of the evidence. 'If the jury finds by a preponderance of the evidence that defendant committed the other crimes, the evidence is clearly relevant and may therefore be considered. [Citations.]' If the jury finds the facts sufficiently proven for consideration, it must still decide whether the facts are sufficient, taken with all the other evidence, to prove the defendant's guilt beyond a reasonable doubt. [Citations.]" (Id. at pp. 1259-1260.)
The trial court in that case instructed the jury in relevant part that " 'such other crime or crimes purportedly committed by a defendant must be proved by a preponderance of the evidence. You must not consider such evidence for any purpose unless you are satisfied that the particular defendant committed such other crime or crimes. [¶] The prosecution has the burden of proving these facts by a preponderance of the evidence.' " (Virgil, supra, 51 Cal.4th at p. 1259.)
Defendant argues that the Virgil court did not consider the "constitutional implications of such an instruction." Though the Virgil court did not specifically refer to due process, it found no conflict between the preponderance standard which is necessary to prove an uncharged offense and the beyond the reasonable doubt standard which is applicable to the links in the circumstantial evidence chain. Thus, the court rejected the very argument underlying defendant's constitutional challenge in the present case. Accordingly, we find Virgil persuasive authority on this issue and reject defendant's contention.
B. Section 654
Defendant contends that the trial court's imposition of sentence as to the criminal threats (count 2) must be stayed pursuant to section 654. We agree.
At trial, the prosecutor argued that when defendant threatened to kill Sanchez as he pointed a gun at her head, he committed assault with a firearm. The prosecutor also argued that the same statement and conduct supported a conviction for criminal threats. However, at the sentencing hearing, the prosecutor argued that defendant had multiple criminal objectives when he assaulted Sanchez and threatened her. Defense counsel argued that the trial court should stay sentence on count 2 under section 654, because defendant had a single intent to "threaten or scare" Sanchez when he committed both the assault with a firearm (count 1) and the criminal threats with the firearm enhancement. The trial court sentenced defendant to state prison for six years as to count 1 and the firearm enhancement, concurrent to four years and four months on count 2 and the firearm enhancement. The trial court stayed execution of sentence as to count 3 under section 654.
Section 654 provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Thus, section 654 prohibits multiple punishment for a single act or indivisible course of conduct. (People v. Hicks (1993) 6 Cal.4th 784, 789.)
" ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' [Citation.] [¶] . . . 'It is [the] defendant's intent and objective, not temporal proximity of his offenses, which determine whether the transaction is indivisible.' [Citation.] ' "The defendant's intent and objectives are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support [the] finding the defendant formed a separate intent and objective for each offense for which he was sentenced." ' [Citation.]" (People v. Capistrano (2014) 59 Cal.4th 830, 885-886.)
The Attorney General argues that there was substantial evidence that defendant harbored separate intents and objectives while committing multiple criminal acts. He summarizes evidence of incidents in which defendant repeatedly threatened Sanchez, but there is only one incident in which he threatened her with a gun. Both the assault and criminal threats counts involved personal use of a firearm. Nevertheless, the Attorney General argues that defendant assaulted Sanchez with the gun to punish her for failing to leave the house and the criminal threats were made to frighten and terrorize her. We fail to see the distinction between these intents and objectives. As defendant points out, "[g]iven that the gun was not discharged and [he] did not strike his mother with the gun, the only punishing effect that pointing the gun at the victim had was that of frightening and terrorizing the victim." Thus, defendant had the same intent and objective to terrorize Sanchez when he simultaneously pointed the gun and threatened to kill her. Accordingly, the trial court erred when it failed to stay the sentence on the criminal threats count.
C. Section 12022.5
When defendant was sentenced, section 12022.5 prohibited the trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.5, subd. (c); see Stats. 2011, ch. 39, § 60.) However, section 12022.5 was amended effective January 1, 2018. Section 12022.5, subdivision (c) now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, § 1.)
Relying on the retroactivity principles in In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 (Francis), defendant contends that the matter must be remanded for resentencing to allow the trial court to consider whether to exercise its discretion to strike the section 12022.5 enhancement.
Estrada set forth an exception to the general rule that changes in the law apply prospectively: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745.) Francis determined that the same exception applied when a statutory amendment gave the trial court discretion to impose a lower sentence. In that case, the defendant was convicted of committing a felony drug offense. While his case was pending on appeal, the statute was amended to change the drug offense from a straight felony to a wobbler that could be charged as a felony or a misdemeanor. The Francis court determined that the amendment was retroactive under the principles of Estrada. (Francis, supra, 71 Cal.2d at pp. 75-78.) The court reasoned that while the amendment did not guarantee the defendant a lower sentence, making the crime punishable as a misdemeanor showed a legislative intent that punishing the offense as a felony might be too severe in certain cases. (Id. at p. 76.)
The Attorney General concedes that the amended statute applies retroactively. However, relying on People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez), he argues that remand is unnecessary, because the record establishes that the trial court would not strike or dismiss the enhancement.
At the sentencing hearing, the trial court rejected defense counsel's argument that unusual circumstances supported a grant of probation. Instead, the trial court imposed a six-year term in state prison as follows: "THE COURT: So the court does not believe that this is an appropriate case for probation. I think it was a very, very violent act towards his mother. [¶] The court, with respect to count 1, picks the mid-term of three years. The court picks that, given the numerous acts of abuse that occurred towards the mother. [¶] And while [defense counsel] said the defendant does not have any prior criminal history, well, he had a lot of bad, illegal behavior which wasn't reported to law enforcement. [¶] The court picks, with respect to the gun enhancement, the mitigated of three years, for a total of six. [¶] With respect to count 2, the court picks the term of 16 months concurrent. [¶] With respect to count 3, the court believes it's 654, and will . . . stay the execution of sentence because I believe it was 654. [¶] . . . [¶] THE CLERK: Your Honor, the enhancement on count 2, which term are you picking? [¶] THE COURT: The mitigated of 3."
The present case is distinguishable from Gutierrez. In Gutierrez, the reviewing court concluded that it need not remand the case for the trial court to exercise its discretion under Romero to strike a prior conviction under the "Three Strikes" law, because the record showed that the trial court would not have exercised such discretion. (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) In that case, the trial court "stated that imposing the maximum sentence was appropriate. It increased appellant's sentence beyond what it believed was required by the three strikes law, by imposing the high term for count 1 and by imposing two additional discretionary one-year enhancements." (Ibid.) In contrast to Gutierrez, here, the trial court gave no indication whether it would have exercised its discretion to lessen the length of defendant's sentence. Though the trial court found that the present case was not appropriate for probation, we cannot presume that it would not have stricken or dismissed the firearm enhancement under the amended statute. "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. [Citation.]" (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Accordingly, we remand the matter for the trial court to consider whether to exercise its discretion under section 12022.5, subdivision (c).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
III. Disposition
The judgment is reversed. On remand, the trial court is directed to stay under section 654 the sentence imposed for the criminal threats count. The trial court is also directed to consider whether to exercise its discretion to strike the section 12022.5 enhancement under section 1385. If the trial court decides to strike the enhancement, it shall resentence defendant. If the trial court decides not to strike the enhancement, it shall prepare an amended abstract reflecting the staying of the sentence for the criminal threats count and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.