Opinion
G056725
11-18-2019
THE PEOPLE, Plaintiff and Respondent, v. ULISES OMAR DELATORRE, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14WF0218) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part and reversed in part. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Ulises Omar DeLaTorre appeals from a judgment after the jury convicted him of attempted murder, two counts of torture, and various other offenses, and found true he committed various enhancements. DeLaTorre, who does not dispute he was the perpetrator, argues the following: insufficient evidence supports his attempted murder and torture convictions; if we conclude one of the torture convictions was supported by substantial evidence, Penal Code section 654 bars a separate punishment for that conviction; and Senate Bill No. 1393 (S.B. 1393) requires we remand the matter for the trial court to exercise its discretion to strike his prior serious felony convictions.
All further statutory references are to the Penal Code.
Although we conclude sufficient evidence supports his attempted murder conviction, we agree insufficient evidence supports his torture convictions and they must be reversed and the sentences vacated, rendering moot his section 654 claim. His S.B. 1393 claim is meritless. We affirm in part and reverse in part.
FACTS
One evening in January 2014, DeLaTorre attacked five different women over the course of several hours. He was arrested a couple days later.
An amended information charged DeLaTorre with the following offenses: kidnapping to commit rape of E.W. (Pen. Code, § 209, subd. (b)(1)) (count 1); assault with intent to commit a sexual offense on E.W. (§ 220, subd. (a)(1)) (count 2); torture of E.W. (§ 206) (count 3); assault with intent to commit rape of A.L. during first degree burglary (§ 220, subd. (b)) (count 4); assault with intent to commit rape of C.W. during first degree burglary (§ 220, subd. (b)) (count 5); attempted murder of K.N. (§§ 664, subd. (a), 187, subd. (a)) (count 6); assault with intent to commit a sexual offense on N.T. (§ 220, subd. (a)(1)) (count 7); and torture of N.T. (§ 206) (count 8). The information alleged the following: he personally inflicted great bodily injury (§ 12022.7, subd. (a)) (counts 1 & 6); he inflicted great bodily injury on a sexual assault victim (§ 12022.8) (counts 2, 4, 5 & 7); and he used a deadly weapon during a sex offense (§ 12022.3, subd. (a)) (counts 4 & 5). The information alleged he suffered two or more serious and violent felony convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and one prior serious felony (§ 667, subd. (a)(1)). The evidence at trial was as follows. Counts 1-3—E.W.
E.W. lived in a mobile home park. One evening, she was walking home from work and passed DeLaTorre. He asked her for a lighter, but she did not reply and continued walking home. When she reached the mobile home park entrance, DeLaTorre hit her on the back of the head. She shouted and turned around, and DeLaTorre hit her in the face with his fist. She fell to her hands and knees, and DeLaTorre continued hitting her. E.W. tried to cover herself and continued screaming. She eventually stood up and ran. But DeLaTorre caught her and threw her to the ground. He dragged her by her shirt to a more secluded area where she was again on her hands and knees. He continued to punch her and attempted to pull down her pants. E.W. struggled, preventing DeLaTorre from pulling down her pants. DeLaTorre stopped and ran away.
E.W. estimated the attack occurred "probably only a few minutes." E.W.'s eye was swollen shut, and her forehead had red marks. She suffered a broken nose that required stitches and left a scar. Count 4—A.L.
A.L. lived with her two daughters in a house close to E.W.'s home. When she returned home with her boyfriend, A.L. went into the house while her boyfriend was outside unloading the car. She entered the kitchen to find DeLaTorre holding a knife. DeLaTorre grabbed her, but she escaped. In the process of escaping, DeLaTorre stabbed A.L.'s left arm and back. The injuries required staples and left scars. A.L. later discovered jewelry and an iPad were missing from the house. In one of her daughter's bedrooms, DeLaTorre placed underwear on a lamp and wrote on the wall, "I ? that pussy, thank you, I wish you were here, I would fuck you in the ass like the other day." Counts 5 and 6—C.W. & K.N.
C.W. and K.N. were visiting Anaheim that same evening. They returned to their hotel. After C.W. opened the door, DeLaTorre pushed them from behind and told them "get in." C.W. fell forward into the room, and K.N. began pushing and punching DeLaTorre. During this scuffle, K.N. felt two smacks to the head and a "slight burning sensation." C.W. joined the fight, and DeLaTorre attempted to pull her out of the room by her arm. As DeLaTorre was pulling her, he cut C.W.'s eye and K.N.'s arm with a knife. C.W. started screaming louder as they both tried to fight off DeLaTorre. They heard someone yell the police had been called, and DeLaTorre fled.
K.N. suffered two stab wounds to her head. One of the stab wounds created a flap of scalp. The other head wound split her scalp and chipped her skull. She received 12 staples in her head and the capillaries underneath needed to be stitched to stop the bleeding. She also suffered a stab wound to her left arm that required staples. Counts 7 and 8—N.T.
N.T. was home from college visiting her parents. She went jogging while listening to her iPod. Her jogging route was approximately two miles from C.W. & K.N.'s hotel. She saw DeLaTorre leaning against a pole and smoking a cigarette. She thought he said something to her as she passed him, but she was not sure. She had a bad feeling and started to jog faster.
DeLaTorre grabbed her from behind by the shoulders and pulled her down to the ground. He stepped in front of her, held her with one hand, and hit her with the other. As he was crouching down straddling her, he was pulling her sweater up and punching her face multiple times. As N.T. was screaming and trying to fight him off, a nearby porch light went on, the resident came out, and DeLaTorre fled.
N.T. suffered a broken nose that required stitches. She had bruises on her eyes and cuts on her lips. She estimated it took one to three months for the injuries on her face to heal.
At the close of the prosecution's case-in-chief, the trial court denied DeLaTorre's section 1118.1 motion to dismiss counts 3 and 8. The court reasoned the jury could reasonably determine DeLaTorre deliberately struck the victims on areas of the body already injured.
The jury convicted DeLaTorre of all counts as charged except count 4. As to count 4, the jury convicted him of the lesser included offenses of first degree burglary (§ 459, 460, subd. (a)), and simple assault (§ 240). At a bifurcated bench trial, the trial court found DeLaTorre suffered two prior strike convictions and one prior serious felony conviction. The court concluded he suffered only one strike based on People v. Vargas (2014) 59 Cal.4th 635.
At the beginning of the sentencing hearing, the trial court stated the following: "This case is about disturbing crimes committed by a disturbed person all on the same day. The word evil has been used many times this morning, and basically the victims took the words out of the court's mouth. Unfortunately, this case demonstrates the evil capabilities of one human being against other vulnerable human beings. This case cries for public safety. [¶] That is the focus of this sentencing hearing. This court will [guarantee] that this defendant could not hurt anyone else in our free society. Due to his extreme and callous actions and crimes his freedom to live in a free society is going to be forfeited today." The court explained its reasons for denying him probation, if he were eligible. It also denied his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, for those same reasons and because his current convictions were violent and serious, he used a deadly weapon, and the victims suffered great bodily injury and emotional trauma.
The trial court sentenced DeLaTorre to a determinate prison sentence of 24 years and eight months as follows: count 6-17 years; count 2-imposed and stayed/struck enhancement; count 4 (burglary)-two years and eight months/struck enhancements, and count 4 (assault)-six months satisfied by local credits; count 7- imposed and stayed/struck enhancement; and prior serious felony conviction-five years. The court sentenced DeLaTorre to an indeterminate prison sentence of 83 years to life as follows: count 5-23 years to life; count 1-22 years to life; count 3-19 years to life; and count 8-19 years to life.
DISCUSSION
I. Sufficiency of the Evidence
DeLaTorre argues there was insufficient evidence to support his convictions on counts 3 and 8, both for torture, and count 6, attempted murder. We agree as to the torture convictions but disagree as to the attempted murder conviction.
"When reviewing . . . the sufficiency of the evidence, we ask '"whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' [Citations.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for '"substantial evidence—that is, evidence which is reasonable, credible, and of solid value"' that would support a finding beyond a reasonable doubt. [Citation.]" (People v. Banks (2015) 61 Cal.4th 788, 804.) A. Torture—Counts 3 and 8
Torture has two elements: "(1) a person inflicted great bodily injury upon the person of another, and (2) the person inflicting the injury did so with specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. [Citation.]" (People v. Baker (2002) 98 Cal.App.4th 1217, 1223.) "[G]reat bodily injury" means "'a significant or substantial physical injury.'" (People v. Hale (1999) 75 Cal.App.4th 94, 108.)
Here, there is no question E.W. and N.T. suffered great bodily injury—they both suffered a broken nose that required stitches, as well as other facial injuries. As to both victims the first element is supported by sufficient evidence. We conclude, however, considering the evidence in the light most favorable to the prosecution, no rational trier of fact could have found beyond a reasonable doubt that DeLaTorre had the specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose when he attacked E.W. and N.T.
The statutory requirement of an intent to inflict cruel pain and suffering has been interpreted to require that the defendant had an intent to inflict extreme or severe pain. (People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202.) "'Sadistic purpose'" encompasses the common meaning—"the infliction of pain on another person for the purpose of experiencing pleasure." (People v. Raley (1992) 2 Cal.4th 870, 901, superseded by statute on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1, 62-63 & fn. 8.) This "can be inferred from the circumstances of the offense, such as a focused attack on a particularly vulnerable area." (People v. Hamlin (2006) 170 Cal.App.4th 1412, 1429 (Hamlin).) "[A] jury could reasonably determine that a person who deliberately strikes his victim on an area of the body that is already injured has the intent to cause severe pain—or, as defendant puts it, 'a level of pain over and above the level of pain that a victim would suffer in an ordinary assault or battery.'" (Id. at p. 1430.)
The focus, however, requires an analysis of the perpetrator's mental state, and not the actual pain inflicted. (People v. Pre (2004) 117 Cal.App.4th 413, 419-420.) As one court explained, "the severity of a victim's wounds is not necessarily determinative of intent to torture" since "[s]evere wounds may be inflicted as a result of an explosion of violence [citations] or an 'act of animal fury' [citation]" rather than an intent to inflict pain for revenge, extortion, persuasion, or other sadistic purpose. (People v. Mincey (1992) 2 Cal.4th 408, 432.) Thus, "torture cannot be inferred solely from the condition of the victim's body [citation], or from the mode of assault or injury suffered [citation], but other evidence of intent to cause suffering is also required. [Citations.]' [Citation.]" (Id. at p. 433.)
The Attorney General argues "the evidence strongly supports the conclusion that [DeLaTorre] simultaneously harbored intents to rape and to inflict cruel or extreme pain on his victims for his own pleasure." Citing to People v. Burton (2006) 143 Cal.App.4th 447, 452 (Burton), and People v. Quintero (2006) 135 Cal.App.4th 1152, 1163 (Quintero), cases where the defendants attacked the victims' faces, the Attorney General points out DeLaTorre repeatedly punched both victims in the face and neither victim reported being punched or kicked elsewhere. He also cites the severity of the facial injuries suffered by both victims.
In Burton, supra, 143 Cal.App.4th at pages 452-453, defendant previously threatened to inflict severe injury or kill the victim before he punched her and "inflicted four deep cuts, each at least one and a half centimeters, to [the victim's] face, and one to her tongue." (Id. at p. 452.) The cuts broke the skin, went down through the underlying tissue and to the muscle, and resulted in over 200 stitches. (Id. at pp. 451-452.)
In Quintero, supra, 135 Cal.App.4th at page 1163, defendant held the victim by the hair and used a retractable bladed knife and made "deliberate uppercut motions to slash [the victim's] face many times." The court concluded, "[t]his action gave his blows more force and thus the greater ability to inflict serious injury than if he had merely jabbed or stabbed [the victim's] face." (Ibid.) The court added, "Not only were the cuts to [the victim's] face made so deeply that much of his skin was sagging, 'exposing everything,' and leaving him with permanent deep scars on his face, the nerves and tendons of his hands were so severely cut that he had lost any strength in them to be able to continue in his construction work." (Ibid.) The court also relied on the fact defendant taunted the victim after the attack, saying, "'Fuck you, fool,'" and asking, "'[H]ow do you like this?'" (Ibid.)
Although the Attorney General suggests neither victim reported being punched or kicked elsewhere, a closer look at the testimony does not support that conclusion. With respect to count 3, after DeLaTorre hit E.W. on the back of the head, he turned her around and struck her in the face with his fist causing her to fall to the ground on her hands and knees where he continued hitting her. Because she was on her hands and knees, it is not reasonable to infer the additional blows were exclusively to her face. When E.W. freed herself and began running, DeLaTorre caught her, threw her to ground, and dragged her by her shirt to a more secluded area where she was again on her hands and knees. DeLaTorre continued to hit her and tried to pull down her pants. This second attack does not reflect a focused attack on E.W.'s face. Clearly, DeLaTorre's assault of E.W. was brutal; we viewed the photographic exhibits (exs. 6, 7, 8). But the crux of our inquiry is as to evidence of DeLaTorre's tortuous intent. Unlike in Burton and Quintero where the defendants made comments demonstrating an intent to cause cruel and extreme pain and a focused attack on the face, here DeLaTorre's two punches to E.W.'s face among other punches to her body do not establish an intent to cause cruel and extreme pain. Considering the evidence in the light most favorable to the prosecution, we find no rational trier of fact could have found DeLaTorre had the necessary specific intent to commit the crime of torture as to E.W.
As to count 8, the facts regarding DeLaTorre's attack on N.T. are somewhat analogous to the facts of his attack on E.W., and the photographic exhibits show she too suffered a vicious assault (exs. 121, 122, 123, 124). DeLaTorre grabbed N.T. from behind by the shoulders and pulled her down to the ground and straddled her. While holding her with one hand, he hit her face multiple times while he was pulling her sweater up. This conduct does not established DeLaTorre was striking the victim with the specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. Unlike in Burton and Quintero, here DeLaTorre's two punches to N.T.'s face do not establish an intent to cause cruel and extreme pain. Considering the evidence in the light most favorable to the prosecution, we find no rational trier of fact could have found DeLaTorre had the necessary specific intent to commit the crime of torture as to N.T.
Neither People v. Assad (2010) 189 Cal.App.4th 187, 195-196, nor Hamlin, supra, 170 Cal.App.4th at pages 1430-1431, cases where defendants engaged in a course of conduct over hours, days, and weeks to strike areas already injured, compel a different result. Here, although there was evidence DeLaTorre struck E.W. and N.T. on the face more than once, the evidence did not establish it was the same area of the face or that it was a course of conduct where DeLaTorre purposefully struck specific areas already injured. Counts 3 and 8 must be reversed and the sentences vacated. B. Attempted Murder—Count 6
Because we reverse count 3, we need not address DeLaTorre's section 654 argument.
To sustain a charge of attempted murder, there must be sufficient evidence of the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Houston (2012) 54 Cal.4th 1186, 1217.) Attempted murder requires express malice, i.e., the assailant either desires the victim's death or knows to a substantial certainty the victim's death will occur. (Ibid.) An intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may be inferred from the defendant's acts and the circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 741.) Direct evidence of intent is rare. (Id. at p. 741.) Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. (Ibid.) Intent to kill can be inferred from the fact the assailant stabs the victim in a vital area as opposed to an arm or a leg. (People v. Moore (2002) 96 Cal.App.4th 1105, 1114. [abdomen particularly vulnerable area of body]).
Here, DeLaTorre powerfully and repeatedly struck K.N. in the head with a knife as she attempted to fend him off. The blows were of such force as to penetrate the capillaries beneath her scalp, chip her skull, and create a flap of scalp. Although DeLaTorre did not express an intent to kill, he intentionally inflicted powerful blows to a particularly vulnerable part of her body. In attacking the victim's head so brutally, he knew to a substantial certainty that the victim's death will occur.
In disputing his conviction, DeLaTorre asserts he did not attack K.N.'s heart or neck, vital areas, and he repeatedly states he only "bonked" her on the head. A person's head is a vital area of the body. And he did not merely "bonk" K.N.'s head—he tore her scalp back and chipped her skull. The fact he may have had an opportunity to kill another victim and did not is of no relevance in whether he intended to kill K.N. Viewing the evidence in the light most favorable to the prosecution, we conclude there is substantial the evidence in the record upon which a rational trier of fact could have found DeLaTorre had the requisite intent to kill K.N. II. S.B. 1393
DeLaTorre argues S.B. 1393's recent amendments of sections 667, subdivision (a), and 1385, subdivision (b), apply retroactively and we must remand the matter for the trial court to exercise its discretion pursuant to these provisions. The Attorney General agrees that because this case was not final before S.B. 1393's effective date, the law applies retroactively to DeLaTorre. The Attorney General adds, however, remand is unnecessary because the trial court's comments at sentencing made it clear it would not strike the five-year term on the prior serious felony convictions.
Under the versions of sections 667, subdivision (a), and 1385, subdivision (b), effective until December 31, 2018, courts were required to impose a five-year consecutive term for "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667" (§ 1385, subd. (b)). On September 30, 2018, the Governor signed S.B. 1393 which, effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss for sentencing purposes a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1-2.) S.B. 1393 applies retroactively. (In re Estrada (1965) 63 Cal.2d 740, 745; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308; People v. Garcia (2018) 28 Cal.App.5th 961, 971-973.)
"We begin by discussing the general standard for assessing when a remand is required for a trial court to exercise sentencing discretion. '[W]hen the record shows . . . the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so . . . the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to "sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court," and a court that is unaware of its discretionary authority cannot exercise its informed discretion.' [Citation.] But if '"the record shows . . . the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required."' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
To support his argument remand is unnecessary, the Attorney General relies on People v. Jones (2019) 32 Cal.App.5th 267 (Jones). In that case the court declined to remand the matter to allow the trial court to exercise its discretion under S.B. 1393 because the "trial court made clear its intention to impose the most stringent sentence it could justifiably impose." (Jones, supra, 32 Cal.App.5th at pp. 274-275.) In Jones, the trial court stated, "there was no doubt the verdict was correct, defendant's actions were premeditated, dangerous, senseless and absurd, he attempted to kill [the victim] only a few months after being released from prison where he had been for 10 years, and the court took 'great satisfaction' in imposing the 'very lengthy sentence' it imposed." (Id. at p. 275.) The Jones court explained a trial court "need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so"; instead, it is sufficient to "review the trial court's statements and sentencing decisions to infer what its intent would have been." (Id. at p. 273.)
Here, we conclude the trial court would not have exercised its discretion to strike the section 667, subdivision (a)(1), enhancement. Like in Jones, the trial court here firmly expressed its view DeLaTorre presents a danger to the public and the court indicated its focus in sentencing the defendant was to guarantee DeLaTorre could not hurt anyone else. Contrary to DeLaTorre's claim, based on the trial court's statements, we are convinced beyond all doubt it would not have exercised its discretion even if it believed it could do so. Remand is unnecessary.
DISPOSITION
We reverse DeLaTorre's convictions on counts 3 and 8 and vacate the sentences. Because those sentences were for indeterminate terms, DeLaTorre's indeterminate sentence now stands 45 years to life—23 years to life on count 5 and 22 years to life on count 1. We direct the clerk of the superior court to prepare an amended indeterminate abstract of judgment and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.