Opinion
H046671
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS LIMON MATA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 18CR006793)
Defendant Jose Luis Limon Mata appeals from a judgment entered after a jury found him guilty of corporal injury of his child's mother (Pen. Code, § 273.5, subd. (a)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)), and false imprisonment (§ 236). The trial court sentenced defendant to three years in prison. He contends that the trial court abused its discretion when it denied probation. We affirm the judgment.
All further statutory references are to the Penal Code.
I. Statement of Facts
A. Prosecution Case
Amalia Gomez and defendant were previously involved in a romantic relationship for over 10 years. They have two children, Jesus and Victoria. By July 2018, they were no longer in a relationship, but defendant would visit the children and occasionally stay at Gomez's house.
Between 10:00 p.m. and 11:00 p.m. on July 18, 2018, Gomez and defendant were arguing in the living room while the children were in their bedroom. They were arguing because defendant did not want "to recognize [her] children as his children or give them his last name" and his seeing another woman. At some point during the argument, defendant gave Gomez his cell phone and showed her that he was texting his girlfriend. Gomez threw his phone "to one side of him on the couch." She also threw a cushion onto the couch. Neither the phone nor the cushion hit defendant. Gomez told defendant to leave the house and to take his possessions out of the garage.
Defendant became upset. When Gomez started to go to her room, defendant punched her in the eye with a closed fist and knocked her to the floor. While defendant was on top of her, he "kept hitting [her], once and again. With his left hand he got [her] from the neck and he was strangling [her]." She had trouble breathing and she felt that she was about to lose consciousness. He punched her many times with a closed fist. Defendant's left foot was on her stomach area and his right foot was on the floor. She tried to get him off of her by scratching his chest with her nails, but she was unable to do so. Defendant was bigger and stronger than she was. As he was punching her, defendant was saying, "That he was a man. That he was a man."
Gomez screamed for Jesus, who was then 12 years old. Jesus heard his mother's "horrific scream" and was scared. He picked up a belt and ran to the living room. Victoria followed him. Jesus saw his mother lying on the floor and defendant was on top of her and punching her in the face. Defendant struck her "[l]ike six times" with a closed fist in the face. His mother was trying to defend herself by putting her hands in front of defendant's face to stop him. She "looked dead" to Jesus and he was terrified. Victoria was crying and screaming for defendant to stop hitting her mother. Jesus hit defendant in the face with the belt.
Victoria's age at the time of the offenses was not in evidence. At the time of trial, which was approximately six months later, she was four years old.
Defendant punched Gomez two more times, got up, and screamed at Jesus that he was his biological father. Jesus, who had thought that defendant was his uncle, was shocked. Defendant began gathering his possessions to leave the house while Jesus called 911 and reported that defendant was "punching" and "hitting" his mother with his fist. Gomez sat on the couch and hugged Victoria. As defendant left the house, the police arrived and arrested him.
Gomez was bleeding from her head and in a lot of pain. She received treatment at the scene and at the hospital for injuries to her eye, neck, and head. Her vision in her left eye was blurred and her hearing was impaired. At the time of trial, she continued to suffer blurred vision and hearing loss. She also has a scar on the top and left side of her head.
Officer Fernando Flores responded to the domestic violence incident. When the officer entered the house, Gomez was holding a towel to her head. There were bloodstains on the towel and her face was swollen and bleeding. He obtained a brief statement from Gomez, who appeared to be emotional and distraught. Officer Flores observed downward scratches on defendant's neck and chest as well as bloodstains on his shirt. Based on his training and experience, the officer opined that the scratch marks on defendant were defensive wounds "as if somebody's trying to escape . . . ."
B. Defense Case
Defendant testified on his own behalf. He has known Gomez since 2003 and he described their relationship as partners. He began living at her residence in May 2017, because she needed help with the rent and "[his] kids were having a hard time."
Defendant described Gomez as a "pretty aggressive and jealous woman." Prior to the incident, Gomez was physically aggressive with him a "couple of times." On one occasion, she threw water on him as he was sleeping on the couch, told him to get out, and pulled him off of the couch. On another occasion, defendant "raised [his] voice to [his] boy . . . and she threw water at [him] while [they] were on the table, and [he] had to leave."
On the night of July 18, 2018, defendant was sitting on the couch and watching television. He had put his cell phones on the arm rest of the couch. Gomez hit defendant in the face with a cushion so hard that he "bounce[d] back into the backrest of the sofa." They began arguing and she "insulted [him] many times." They argued about Jesus not having defendant's name and his relationship with a previous girlfriend. The argument continued for "5 minutes or 15," but he was not angry during this period. Gomez took his cell phones and threw them at defendant. One hit his stomach and the other hit his forehead. Defendant stood up to leave the house, but Gomez would not let him. She pulled his shirt and scratched his chest. Defendant struck Gomez's forehead once. They then "kind of fell into each other down on the floor." He did not hit her with a closed fist. He explained that he is unable to close his fist, because he has had eight surgeries and has an artificial joint in his ring finger. After Gomez "kept throwing . . . her hands on [his] chest," he struck her two more times "to get her off [him]." He claimed that Gomez "started by doing that aggressive attack on me, and . . . I think I shouldn't have rolled with her." Defendant struck Gomez four times because he was defending himself.
At some point, defendant saw Jesus come into the living room, but Victoria was not with him. Jesus hit defendant's left shoulder with the belt and defendant stopped punching Gomez, because he did not think "kids should be involved in any kind of domestic violence." The physical interaction between defendant and Gomez lasted four minutes. Defendant opened the door and waited for the police to arrive.
Defendant sustained "a little dent . . . above [his] eyebrow" when Gomez threw the phone at him. He also suffered a cut lip. He received antibiotic ointment for these injuries.
Defendant denied strangling Gomez, but he admitted "h[o]ld[ing] her . . . shoulder close by the neck." He denied causing any injuries to her neck. He first claimed that he hit her in the head and caused her head to split open with the knuckle of his index finger. However, he later testified that he could, and did, make a fist and punched her in the head. He also acknowledged that he is stronger and bigger than Gomez. Defendant never told Officer Contreras that Gomez grabbed him by his shirt or that she scratched him first. Defendant testified that he had never been convicted of threatening another person in 1999. But he was impeached with the record of his 1999 misdemeanor criminal threats conviction.
Francisco Cabrera has known defendant for 30 years. He opined that defendant's reputation in the community was that he was a peaceful person, "really calm and collected, and good mannered." He did not know that defendant had been convicted of making criminal threats in 1999 and that fact did not change his opinion.
Juan Castellon, the pastor of Bethel Baptist Church, has been defendant's minister for more than 15 years. He has interacted with him on a one-on-one basis "hundreds of times." In Castellon's opinion, defendant has a reputation for being "a man of peace." Castellon was not aware that defendant had been convicted of making criminal threats against another person.
III. Discussion
Defendant contends that the trial court abused its discretion by denying his request for probation, because it relied on aggravating factors not supported by substantial evidence and failed to consider a mitigating factor.
A. Background
In her report, the probation officer stated that defendant was cooperative during the interview, but declined to provide a statement. Defendant "advised he went to trial because he was acting in self-defense . . . and worried about suffering a felony conviction." The probation officer noted that defendant "minimized his criminal actions," the "violence he demonstrated is concerning, and it is probable he could have fatally harmed the victim." She further noted that defendant's children were present during the incident and consequently his son suffered from depression. Nevertheless, the probation officer recommended that defendant be granted probation since he had no prior criminal record and he advised that he would comply with the terms of probation.
Defendant filed a statement in mitigation in which he agreed with the probation officer's recommendation. Defendant argued that the following factors under California Rules of Court, rule 4.414 supported granting him probation: the circumstances of the present crimes were not more serious than those present in cases including similar facts; he was not armed with a weapon; the victim was not vulnerable; the victim did not make a claim for monetary loss; the manner in which the crimes were carried out did not demonstrate criminal sophistication nor professionalism; he did not take advantage of a position of trust to commit the crimes; he did not violate his prior probation conditions; he was willing and able to comply with the terms of probation; imprisonment would have a detrimental effect on him and his dependents; his felony conviction would not render him unemployable; and he did not pose a danger to anyone if not imprisoned (rule 4.414(a)(1), (2), (3), (5), (8), (9), (b)(2), (4), (5), (6), (8)). Defendant acknowledged that he inflicted physical and emotional injury upon Gomez and emotional hurt to their two children (rule 4.414(a)(4)), he was an active participant in the crimes (rule 4.414(a)(6), and he had a prior misdemeanor for criminal threats (rule 4.414(b)(1)).
All further rule references are to the California Rules of Court.
In the statement in mitigation, trial counsel stated that "[t]he probation report indicates . . . that [defendant] did not express any responsibility for the crimes. [Defendant] was advised not to discuss facts of the case with probation. He does, as indicated, respect the verdict of the jury. [Defendant's] being advised to remain silent as to the circumstances surrounding the incident is connected to his future consideration of whether or not to file a notice of appeal concerning the convictions in the near future. Any expression of remorse, even at this stage of the proceedings, could lead to an inference of consciousness of guilt at any prospective future litigation." Trial counsel also submitted a declaration in which he stated that he had spoken with defendant's former wife. She informed trial counsel that she and defendant were married for approximately 14 years and he never physically abused her during their marriage.
The prosecutor requested that defendant be sentenced to five years in prison. She argued that Gomez suffered serious injuries and pointed out that strangulation "often leads to lethality in domestic violence cases." She also emphasized that the children were traumatized, defendant lied in his testimony, and defendant was not remorseful.
At the sentencing hearing, the trial court stated that it had read the probation report, the defense statement in mitigation, and the prosecutor's sentencing memorandum. The trial court denied probation and explained its reasoning: "Okay. I know that [defense counsel] . . . is arguing for probation, and probation actually recommended probation. However, I don't think probation's appropriate here. I'm denying probation after considering the following factors contained in Rule of Court 4.414: (a)(1), although the defense characterized this as a somewhat common fact pattern in domestic violence cases, I think that was the phrase, the Court finds that the choking of Ms. [Gomez] does make it more serious than quite a lot of domestic violence cases the Court sees. [¶] (a)(4): The defendant inflicted great physical and emotional injury on Ms. Gomez, as well as certainly emotional injury on Jesus. [¶] (a)(6): The defendant was an active participant in the crimes. [¶] (b)(7): The defendant has not shown remorse, and really from his trial testimony, appeared to the Court to be in denial about his actions. Court also finds that he was untruthful in his trial testimony, as clearly the jury did. [¶] The Court notes that the defendant does have only one prior misdemeanor conviction. And his prior performance on probation, I don't have any information about, but I'm assuming it's been successful, or it was successful. [¶] . . . [¶] . . . And the Court does find that his imprisonment may affect his dependent or dependents. However, (b)(8) also applies, and the Court believes that if not imprisoned, [defendant] will be a danger to others, especially to Ms. Gomez, in that [defendant] still does not appear to take responsibility for his actions, or that he thinks there's anything wrong with his actions. [¶] So in determining the appropriate sentence, the Court found the following circumstances in aggravation pursuant to Rule 4.421: The crimes in this case disclosed a high degree of cruelty, viciousness, and callousness. [¶] . . . [F]actors in mitigation pursuant to Rule 4.423(b)(1) I think is present, that the defendant has an insignificant record of criminal conduct, considering the recency and frequency of any prior crimes. [¶] And (b)(6), I'm assuming that his prior performance on probation was satisfactory. [¶] So after considering all the factors stated by the Court, as well as the facts and circumstances of the case, and certainly the victim impact statement made here today," the trial court sentenced defendant to three years in prison.
B. Analysis
" 'Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.' [Citation.]" (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) " 'Abuse of discretion,' in turn, depends on whether the trial court's order ' "exceeds the bounds of reason." ' [Citation.] Obviously, a decision which simply ignores statutory requirements constitutes an abuse of discretion." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225.)
"In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Rule 4.414 sets forth the criteria affecting a trial court's decision to grant or deny probation. These criteria "must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise." (Rule 4.409.) "[I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1313, overruled on other grounds as stated in People v. Cook (2015) 60 Cal.4th 922, 927, 939.)
Defendant contends that substantial evidence does not support the trial court's finding that he was not remorseful. He claims that he expressed remorse at the time of the incident and at trial. He points out that he stated, "I lost control" as he was being transported to jail after his arrest. He also testified that he stopped attacking Gomez when Jesus came into the room, because he did not "believe that kids should be involved in any kind of domestic violence." He further testified that Gomez was the initial aggressor, but he "shouldn't have rolled with her."
Remorse is defined as "a deep, torturing sense of guilt felt over a wrong that one has done; self-reproach." (Webster's New World College Dict. (4th ed. 2008) p. 1213.) Defendant's statements that he "lost control" and that Gomez was the initial aggressor, but he "shouldn't have rolled with her" are not expressions of remorse. These statements are observations of his behavior in the context of a self-defense claim rather a deep sense of guilt over his violent conduct. His statement that he stopped attacking Gomez to prevent his children's involvement overlooks that they had already heard and seen his attack on their mother. Moreover, his justification for halting the attack was not a recognition of the harm that he caused to Gomez.
Relying on Mitchell v. United States (1999) 526 U.S. 314 (Mitchell) and People v. Coleman (1969) 71 Cal.2d 1159 (Coleman), defendant contends that the trial court could not "draw an adverse inference from [his] invoking the right to remain silent at his sentencing hearing." Both cases are distinguishable from the present case.
Coleman, supra, 71 Cal.2d 1159 has been overruled on other grounds as stated in Garcia v. Superior Court (1997) 14 Cal.4th 953.
In Mitchell, the United States Supreme Court held that a guilty plea in the federal criminal system does not waive the privilege against self-incrimination in the sentencing phase of the case. (Mitchell, supra, 526 U.S. at p. 316.) However, the Mitchell court specifically declined to consider "[w]hether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided" in federal sentencing guidelines. (Id. at p. 330.) In Coleman, the defendant argued that the prosecutor committed misconduct during the penalty phase of the jury trial when he maintained that the defendant's refusal to admit guilt established that he lacked remorse. (Coleman, supra, 71 Cal.2d at p. 1168.) However, nothing in that case suggests that a trial court in a noncapital case commits constitutional error in considering the factor of "[w]hether the defendant is remorseful" under rule 4.414(b)(7) when it makes a postconviction discretionary decision to grant or deny probation.
Defendant next contends that there was insufficient evidence to support the trial court's findings that he was in denial about his actions and untruthful in his trial testimony. Defendant failed to object on this ground at the sentencing hearing and did not raise this contention in his sentencing brief. Accordingly, defendant has forfeited this claim. (People v. Scott (1994) 9 Cal.4th 331, 356.)
Assuming that the claim has not been forfeited, it has no merit. Defendant minimized his conduct throughout his testimony. He claimed Gomez physically attacked him and prevented him from leaving the room, and they "kind of fell into each other" on the floor. He also asserted that he was incapable of hitting her with a closed fist and that he did not strangle her. But he later conceded that he could, and did, use his closed fist. Rather than admitting that he strangled her, he maintained that he held his hand on her shoulder near her neck. Moreover, defendant lied on the stand when he testified that he had never been convicted of making criminal threats. Based on this record, there was substantial evidence to support the trial court's findings that he was in denial about his actions and untruthful in his trial testimony.
Defendant argues that Gomez's testimony that he strangled her does not support a finding that he was either untruthful or minimized his conduct. He notes that Jesus made no such observation when he came in the room. But defendant could have strangled her before Jesus arrived. Defendant also points out that Gomez did not tell the police that she had been strangled when they arrived. Though Gomez did not remember whether she told the officer when he arrived, she told him later and he stated that he "would put that in the system." In any event, the trial court could have reasonably concluded that Gomez's testimony was credible.
Defendant also challenges the sufficiency of the evidence to support the trial court's finding that he would be a danger to others if not imprisoned. Defendant asserts: he was not violent with Gomez during the previous 14 years of their relationship; he was never violent with their children; he did not engage in inappropriate conduct with either Gomez or their children after he was arrested for this incident; other witnesses testified as to his peaceful character; and his former wife stated that he was not physically abusive during their marriage. But, as previously stated, there was evidence that defendant was untruthful in his testimony and did not express remorse for the injuries that he inflicted on Gomez and their children. Moreover, as the prosecutor argued, strangulation in domestic violence cases is a predictor of homicide. (See Glass et al., Non-fatal strangulation is an important risk factor for homicide of women, J. Emerg. Med. (Oct. 2008), <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2573025/> [as of May 15, 2020], archived at: <https://perma.cc/3VJW-W9TR.) Thus, defendant's failure to take responsibility for his conduct when taken into consideration with the brutal attack on Gomez constituted substantial evidence that he would be a danger to others if not imprisoned.
Relying on rule 4.414(a)(7), defendant also argues that the trial court failed to properly consider the unusual circumstances of this case as a mitigating factor in favor of granting probation. This rule states: "Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur." (Rule 4.414(a)(7).) Defendant asserts that "[c]ounsel indirectly addressed the unusual circumstances of this case by stating 'that this was an isolated incident that is extremely unlikely to ever recur again.' " But defense counsel made this claim when he discussed the factor that defendant did not pose a danger to others under rule 4.141(b)(8).
Assuming this claim has not been forfeited, it has no merit. Defendant asserts that the unusual circumstance was the tension between Gomez and him due to the secret that they were keeping from Jesus, that is, that defendant was his father. Though defendant's argument with Gomez involved his failure to acknowledge paternity of his children, there were other sources of conflict between them. These included: defendant's texting his girlfriend while they were talking; and Gomez telling him to leave the house and take his belongings with him. Defendant also repeated "[t]hat he was a man" while he was punching Gomez, thus suggesting that he was reacting to a perceived attack on his masculinity. Thus, the trial court could have reasonably concluded that the crime was not committed due to unusual circumstances, which were unlikely to recur.
In sum, the record fully supports the trial court's findings: the choking of Gomez made it more serious than other domestic violence cases; defendant inflicted great physical and emotional injury on Gomez and emotional injury on Jesus; defendant was an active participant in the crimes; defendant had not shown remorse, appeared to be in denial about his conduct, and was untruthful in his testimony at trial; and defendant would be a danger to others if not imprisoned. Accordingly, the trial court did not abuse its discretion when it denied probation.
IV. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.