Opinion
F073341
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. RUBEN TONY CERVANTES, Defendant and Appellant.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
Finding good cause to consider appellant's untimely petition for rehearing, it is ordered that the nonpublished opinion filed herein on September 18, 2018, be modified as follows:
On page 11, the paragraph under the heading " DISPOSITION ," immediately after the first sentence ending "resentence appellant accordingly," add as footnote 2 the following footnote:
2 On September 30, 2018, Governor Brown signed into law Senate Bill No. 1393, deleting the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of the five-year enhancement described in Penal Code section 667, subdivision (a). On October 11, 2018, appellant filed a petition for rehearing, contending this new legislation applied to him. We considered and denied the petition. As appellant's case is remanded for resentencing for the trial court to exercise its discretion pursuant to Senate Bill
No. 620, appellant will have the opportunity to raise his issue regarding Senate Bill No. 1393 at the resentencing hearing.
Except for the modification set forth, the opinion previously filed remains unchanged.
This modification does not effect a change in the judgment.
Appellant's petition for rehearing filed on October 11, 2018, is denied.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF148741A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Ruben Tony Cervantes was convicted by jury trial of attempted deliberate and premeditated murder in which he personally used a firearm and other crimes arising out of an incident where he shot his pregnant girlfriend in the face. On appeal, he contends that the evidence was insufficient to support the jury's finding of premeditation and deliberation. He also contends the matter should be remanded to allow the trial court to exercise its discretion whether to strike the firearm enhancement pursuant to Senate Bill No. 620. We agree that remand is appropriate for the limited purpose of giving the trial court discretion whether to strike the firearm enhancement. In all other respects, we affirm.
STATEMENT OF THE CASE
Appellant was convicted of two counts of attempted deliberate and premeditated murder (Pen. Code, §§ 664/189; counts 1 & 2) and one count of infliction of corporal injury to a spouse (§ 273.5, subd. (a); count 4). As to count 1, the jury found true he personally discharged a firearm (§ 12022.53, subd. (d)) and personally inflicted great bodily injury under circumstances of domestic violence (§ 12022.7, subd. (e)). As to count 4, the jury found true he personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Appellant waived trial by jury on several alleged priors, and the court found them true as alleged.
All further statutory references are to the Penal Code. --------
As to count 1, the court sentenced appellant to a term of 14 years to life, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. The court stayed the sentence for the section 12022.7, subdivision (e) enhancement. As to count 2, the court sentenced appellant to a consecutive term of 14 years to life. The court imposed two five-year terms for a section 667, subdivision (a) prior (counts 1 & 2) and struck two section 667.5, subdivision (b) priors. As to count 4, the court sentenced appellant to a term of eight years, plus a 10-year section 12022.5, subdivision (a) enhancement and a five-year section 12022.7, subdivision (e) enhancement. The sentence on count 4 was stayed. Appellant's total prison sentence was two consecutive terms of 14 years to life, with a consecutive term of 25 years to life for the firearm enhancement attached to count 1 and two consecutive five-year terms for the section 667, subdivision (a) priors. Appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Appellant had been dating M.W. for three to four months, and they lived together. They argued often. She became pregnant with his child about two months into their relationship. When M.W. informed appellant she was pregnant, he told her to get an abortion and to drink bleach.
Approximately seven to 10 days later, on May 29, 2013, at approximately 5:50 a.m., law enforcement was alerted to a victim with a gunshot wound at appellant and M.W.'s residence. M.W. had been shot in the face. When law enforcement arrived, M.W.'s pillow and bed were saturated with blood, and her three-year-old son was found lying in the bed. There were blood hand marks on the walls throughout the hallway leading from the bedroom, where M.W. was found by law enforcement.
The neighbor who lived in the house directly behind appellant and M.W. called 911 and said that appellant was banging on their back door and had a gun. Appellant was found shortly after in the bedroom of another neighbor's home. He informed law enforcement that the gun was in the dresser, which is where the gun was ultimately found.
When detectives later interviewed appellant, he admitted to shooting M.W. He stated he should have just left and that he made a big "mistake." He stated that normally when M.W. is arguing with him, he tries to deal with her and keep his composure. When one of the detectives asked him if he kept his composure during the incident, he replied, "I kept it for a little while." When a detective asked him why he did not seem upset, he replied that he had only been dating M.W. for four months.
The bullet entered the left side of M.W.'s face, fracturing multiple facial bones. She had several injuries to the main blood vessel that supplies the brain on the left side and suffered a stroke. There was a high risk of death to both M.W. and the fetus. She and the baby ultimately survived.
Appellant's defense was that he was high on methamphetamine at the time of the incident, which affected his decision-making processes.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends the evidence at trial was insufficient to sustain a true finding on the allegation that the attempted murder of M.W. was deliberate and premeditated. We reject this contention.
In assessing a claim of insufficiency of the evidence, 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." (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence encompasses circumstantial evidence and reasonable inferences based on that evidence. (People v. Pierce (1979) 24 Cal.3d 199, 210.) "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. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 932-933.) " ' "Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt." ' " (People v. Thomas (1992) 2 Cal.4th 489, 514 (Thomas).)
"Attempted murder requires (1) a specific intent to kill and (2) a direct but ineffectual act toward accomplishing the intended killing. [Citation.] ... [U]nlike murder, attempted murder is not divided into degrees. The prosecution, though, can seek a special finding that the attempted murder was willful, deliberate, and premeditated, for purposes of a sentencing enhancement." (People v. Mejia (2012) 211 Cal.App.4th 586, 605.)
" '[P]remeditation means " 'considered beforehand' " [citation] and deliberation means a " 'careful weighing of considerations in forming a course of action ...' " [Citation.] "The process of premeditation and deliberation does not require any extended period of time." ' " (People v. Salazar (2016) 63 Cal.4th 214, 245.) " 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....' " (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363.) Ultimately, a finding of deliberation and premeditation requires the existence of "preexisting reflection, of any duration." (People v. Solomon (2010) 49 Cal.4th 792, 813.)
In evaluating whether sufficient evidence supports a jury finding that an attempted murder was deliberate and premeditated, we employ the same analysis that we use to resolve an insufficiency challenge to a first degree murder conviction: the three-pronged "Anderson test." (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); People v. Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8 ["We do not distinguish between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation."], disapproved on other grounds in People v. Mesa (2012) 54 Cal.4th 191, 199.)
Anderson delineates three categories of evidence for reviewing courts to consider in evaluating whether a murder (or attempted murder) was committed with premeditation and deliberation: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of a 'pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (Anderson, supra, 70 Cal.2d at pp. 26-27.)
A verdict of premeditation and deliberation will typically be upheld when "there is evidence of all three types." (Anderson, supra, 70 Cal.2d at p. 27.) Alternatively, a verdict will be sustained when "there is extremely strong evidence of planning; or evidence of motive in conjunction with either (a) evidence of planning or (b) evidence of a manner of killing showing a preconceived design." (People v. Brito (1991) 232 Cal.App.3d 316, 323.) "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse." (People v. Pride (1992) 3 Cal.4th 195, 247.)
We find that there is some of all three types of evidence in this case with the strongest type being motive. There is evidence that appellant had motive to kill both M.W. and the fetus. A week to 10 days before appellant shot M.W., he told her to get an abortion and suggested that she do so by drinking bleach. This is more evidence than was required to find substantial evidence for motive in People v. Disa (2016) 1 Cal.App.5th 654, 665-666, where the defendant killed his girlfriend by using a chokehold, and the appellate court found evidence of motive from the facts that he was jealous over her new relationship, angry that she was trying to kick him out of his own house and insulting him, and depression over the apparent ending of their relationship. In contrast, we do not have to infer from appellant's negative emotions toward M.W. that he may have planned to kill her and the fetus. We have evidence before us of his express desire for the fetus to cease existing. In addition, the suggestion that M.W. abort the fetus in a violent manner such as by drinking bleach rather than obtain a safe surgical abortion demonstrates not only maliciousness toward the fetus but an implied desire for M.W. to die or at least to be harmed. These comments are strong evidence of a preexisting reflection.
The manner of the attempted killing also supports a finding of premeditation and deliberation, particularly when considered in conjunction with appellant's motive. The method of the killing alone can sometimes support a conclusion that the murder was deliberate and premeditated. (People v. Hawkins (1995) 10 Cal.4th 920, 957, overruled on other grounds by People v. Blakeley (2000) 23 Cal.4th 82.) Appellant does not cite, nor have we found, any cases that reversed a finding of premeditation and deliberation when the manner of killing was a gunshot at close range to the face. Rather, cases have held that a close-range shooting without provocation or evidence of a struggle provides evidence of premeditation and deliberation. (People v. Marks (2003) 31 Cal.4th 197, 230.) In People v. Adcox (1988) 47 Cal.3d 207, our Supreme Court found "a single fatal shot to the back of the head of the unarmed victim from a distance of six to ten feet as he kneeled, baiting his fishhook" was evidence that the shooting was planned in advance. (Id. at p. 240.) In People v. Cruz (1980) 26 Cal.3d 233, the court concluded that the victim's killing, perpetrated by blows to only the head and by a shotgun blast in the victim's face "permit[ted] the jury to infer that the manner of killing was so particular and exacting that defendant must have killed intentionally according to a preconceived design and for a reason." (Id. at p. 245, overruled on other grounds by People v. Hudec (1985) 167 Cal.App.3d 550.) In these cases, there was little to no independent evidence of planning or motive.
Appellant shot M.W. once in the face while she was in bed. He targeted a vital area of M.W.'s body, her head, and under most circumstances this would have been sufficient to kill her. From this, the jury could have inferred he did not randomly or impulsively shoot in her direction. There was no evidence that appellant shot from another room in the house, permitting the reasonable inference that he was in the bedroom with M.W. and fired from a close range. Although appellant and M.W. stated that they had an argument the day of the shooting, there is no evidence that it was of a nature that could have by itself provoked the murder. There was evidence that they frequently fought, with appellant stating they fought every day. There is no evidence M.W. was armed or that she struggled. The head of the bed and the pillow were saturated with blood. M.W. was in a vulnerable position, with her three-year-old child present or at least nearby. The manner of the attempted killing here, combined with the motive evidence, suggests it was considered by appellant beforehand.
The record contains less evidence of planning than the other two types because M.W. was unable to recall and appellant did not provide details on what happened in the moments leading up to the shooting. However, as we have discussed, the case law establishes a premeditation and deliberation finding can be upheld based only on manner and motive evidence, and in some cases, on manner evidence alone. Here, though there is not a great deal of planning evidence, there is some. Appellant armed himself with a firearm. Appellant argues there is no evidence that he armed himself for the purpose of committing the crime because he was in his own home, which is where he most likely kept the firearm. We, however, must accept logical inferences the jury might have drawn from the evidence. (People v. Brady (2010) 50 Cal.4th 547, 561.) The inference the jury likely drew from the fact appellant was in his own home is that he was not walking around armed and that he would have had to take some action to retrieve the weapon from either somewhere in the bedroom or another room. The incident occurred a little before six in the morning and M.W. was in bed. Planning can be inferred where a weapon is not readily accessible at an hour when activity would not normally be taking place. (Thomas, supra, 2 Cal.4th at pp. 517-518.) As we have discussed, no specific passage of time is required for a finding of premeditation and deliberation. It can happen quickly, so long as the act is reflected upon.
Although the evidence is not overwhelming, the relevant inquiry on appeal is whether " 'any rational trier of fact' " could have been persuaded beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting from Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Appellant's motive of ridding himself of his girlfriend carrying his unwanted baby; the manner of the killing—a single shot to the face of M.W.; and the steps appellant took to arm himself support the jury's finding of premeditation and deliberation.
II. Senate Bill No. 620
The court imposed a firearm enhancement pursuant to section 12022.53, subdivision (d) tied to count 1. At the time appellant was sentenced, section 12022.53, subdivision (d) mandated a consecutive enhancement of 25 years to life.
After appellant was sentenced, but while this case was pending on appeal, the Legislature enacted Senate Bill No. 620 (Stats. 2017, ch. 682, § 2.) As of January 1, 2018, section 12022.53, subdivision (h) 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."
In supplemental briefing, appellant contends the amendment to section 12022.53, subdivision (h) applies retroactively to his case and that the matter must be remanded for the court to consider whether to exercise its discretion to strike this enhancement. Respondent concedes that the amendment applies retroactively to appellant's case. However, citing People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez), respondent contends remand is not appropriate because there is no reason to believe the court would exercise its discretion to strike appellant's firearm enhancement. We agree with the parties that Senate Bill No. 620 applies to appellant's case and with appellant that remand is appropriate so the trial court can consider whether to strike his firearm enhancement.
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants like appellant whose judgments are not yet final on the statute's operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendment to section 12022.53 was intended to operate prospectively only, Senate Bill No. 620 applies retroactively to appellant's case.
Respondent argues remand is inappropriate because the court refused to dismiss a strike due to appellant's extensive criminal history, found aggravating factors warranting the upper term on count 4, and imposed a consecutive sentence for the attempted murder count with the fetus as the victim (count 2). While the facts of this case may suggest the trial court would not strike any of the firearm enhancements at issue here if it had discretion to do so at the time, we do not agree that there is no purpose to remanding this case.
Gutierrez is distinguishable because in that case, when the trial court sentenced the defendant, it clearly stated it did not find " 'any good cause to strike' " the prior conviction at issue and " 'a lot of reasons not to,' " and it concluded that the defendant was " 'the kind of individual the law was intended to keep off the street as long as possible.' " (Gutierrez, supra, 48 Cal.App.4th at p. 1896.) In contrast, the court here did not make any similar comments when it imposed the firearm enhancement. Further, it did strike two prior conviction allegations. Though it imposed a consecutive sentence as to count 2, it did so because the jury found two separate intents as to two separate victims. This is a common sentencing practice and is not indicative of whether the court would have struck discretionary enhancements for use of a firearm. This case, therefore, is more like People v. Brown (2007) 147 Cal.App.4th 1213, 1228, where the court noted that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way. While we offer no position on how the trial court should act when exercising its newfound discretion under Senate Bill No. 620, we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
DISPOSITION
The matter is remanded to the trial court for the court to consider whether to exercise its discretion pursuant to Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), to strike appellant's firearm enhancement and, if appropriate, following the exercise of that discretion, to resentence appellant accordingly. In all other respects, the judgment is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.