Opinion
2d Crim. No. B191861
4-19-2007
THE PEOPLE, Plaintiff and Respondent, v. RICHARD S. VASQUEZ, Defendant and Appellant.
Fred Klink, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Richard Sammy Vasquez appeals from the judgment entered following a court trial at which he was found guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) He was acquitted of attempted murder. (§§ 664, 187, subd. (a).) The court found true an allegation that he had personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).)
All statutory references are to the Penal Code.
This is the second time that this matter has come before us. The trial court originally sentenced appellant to prison for six years. In an unpublished opinion, we reversed the judgment only as to the sentence because appellant had been denied a meaningful opportunity to state his case for an alternative sentence. We concluded that this denial constituted a violation of procedural due process. We remanded the matter to the trial court for resentencing. (People v. Vasquez, No. B179611, filed Oct. 19, 2005.) On remand, the trial court resentenced appellant to prison for six years. We again reverse and remand because the trial courts sentencing choice was based on material inaccuracies concerning the facts of the offense. The courts reliance on these inaccuracies rendered the resentencing hearing fundamentally unfair and denied him due process of law.
Facts
We reiterate verbatim the facts as set forth at pages 2-3 of our prior unpublished opinion.
A. Peoples Case-in-Chief
Angel and Pedro Hernandez are brothers. They lived on Baruch Street in Rosemead. Cynthia Gonzales lived across the street from them. Appellant was Cynthias boyfriend.
In February 2004 Pedro argued with appellant over an incident involving Pedros children. The childrens ball hit appellants car. Appellant told the children "that next time the ball went over there he was gonna . . . kick their ass."
On April 25, 2004, Angel drove by Cynthias house. Pedro was with him inside the vehicle. They saw appellant in front of the house staring at them. Pedro referred to the staring as "mad dogging."
Angel parked the vehicle, and Pedro walked to Cynthias house. Pedro wanted to talk to Cynthias mother, Rosa, about his "problem" with appellant. Pedro was "mad" because he felt that appellant had "mad dogged" him. While Pedro was conversing with Rosa, appellant stabbed him in the left side of the neck and in the stomach. Pedro was stabbed a total of three times.
Pedro said that he had done nothing to provoke appellants assault. He denied that he had chased appellant or that he had punched him in the face.
However, Cynthia testified that she had seen Pedro run toward appellant and "sock" him in the nose, knocking his glasses off. Pedro "socked" appellant a second time. Appellant then "socked" [Pedro] back and [Pedro] just fell." Appellants nose was bleeding. Appellant did not touch Pedro after he had fallen. Cynthia told law enforcement that appellant had stabbed Pedro in the neck.
Pedro underwent surgery and was in bed for about one month. At the trial in November 2004, he still suffered from pain and headaches as a result of the stabbing. In addition, the left side of his face was numb and he was unable to do heavy lifting. The lifting limitation affected his work as a plasterer.
Appellant spoke to law enforcement about the incident. He said that, as Angel and Pedro drove by Cynthias house, they were "mad dogging him" and "cussing." Appellant went to his car and armed himself with a knife. He was afraid because Pedro "was older and bigger." Appellant "wanted to be ready."
Pedro was 5 feet, 11 inches tall and weighed about 220 pounds. Angel was the same height and weighed about 190 pounds. There is no evidence as to appellants height or weight. A detective testified that appellant was thinner than Pedro and Angel.
While Pedro was talking on a cellular phone, appellant heard him say, "Wait a minute Im gonna call you back. Im gonna kick this bitchs ass." Pedro and Angel "chased [appellant] around" his car. They "both rushed up" on him and Pedro hit him in the face. After appellant was hit, he "punched [Pedro] in the face in a retaliatory blow." Appellant then pulled out the knife and stabbed Pedro in the neck and chest. Pedro collapsed to the ground. Appellants nose was bleeding.
Appellant claimed that he had acted in self-defense and that he was sorry Pedro "got hurt." In a written statement, appellant alleged: "They came at me to hurt me very bad."
B. Defense Case
Appellant called several witnesses on his behalf. They testified that Pedro and Angel were screaming at appellant and chasing him. Pedro was drunk and threatened to kill him. Appellant said to Pedro, "I dont want no problems with you. You are . . . older than me." Pedro and Angel cornered appellant against a garage door so that he was unable to move away. Pedro hit appellant with a closed fist in the face, knocking his glasses off and causing his nose to bleed. Pedro hit appellant a second time. Appellant struck back at Pedro and Pedro fell. While lying bleeding on the ground, Pedro said: "The fucker, Im gonna kill em." Appellant did not touch Pedro after he had fallen.
The defense witnesses testified that they had not communicated their observations to law enforcement because Angel had told them to keep quiet.
C. Rebuttal
A detective testified that the defense witnesses had said they were inside Cynthias house during the incident involving Pedro and appellant. They told the detective nothing about the incident.
Trial Courts Decision on Guilt
The court found appellant not guilty of attempted murder but guilty of assault with a deadly weapon. It explained: "The court finds the defendant used excessive force. He was involved in an altercation with the victim. However, he did not sustain any serious injuries. I know he had a bloody nose but thats not enough to stab somebody three times."
Resentencing Hearing
Prior to the resentencing hearing, appellant filed a sentencing memorandum requesting that he be placed on formal probation. Attachments to the memorandum included our prior unpublished opinion and letters of character reference written on appellants behalf.
The resentencing hearing was conducted on June 1, 2006. The trial court stated that, on the date of the offense, appellant had cursed at Pedros children with the intention of provoking a confrontation with Pedro and that "[appellant] knew very well that after he cussed at the children that day that when [Pedro] got home he would be coming down to see him . . . ." Therefore, the trial court concluded, appellant had "lured [Pedro] down there in order to settle whatever arguments they had." Appellant "created the situation and he knew exactly what he was setting up that day." The trial court explained that, because appellant had carefully planned the incident and was "lying in wait" with a knife for Pedro to appear, probation was unwarranted: "[I] do not find that he is a probationary candidate based on . . . my review of the facts. . . . [T]he victim may have come over to the house but it was [appellant] who set up the situation that provoked the incident because he knew very well when he cussed at those children and got in it with them that they would tell their Dad and he would come over. [¶] . . . [T]he fact that [appellant] went and armed himself and was basically lying in wait for [Pedro] to come over . . . was a factor to deny him the probation. [¶] So with those factors in mind I deny him the probation."
Appellants Sentence Must Be Reversed Because It Was Based on Inaccurate Information
In denying appellant probation, the trial court relied on inaccurate information concerning the facts of the offense. No evidence was presented that, on the date of the offense — April 25, 2004 — appellant had cursed at Pedros children. Rather, the evidence showed that the cursing had occurred two months earlier in February 2004. On April 25, 2004, Pedro walked to Cynthias house because appellant had stared at him from across the street. Pedro testified: " . . . I looked to my right and [appellant] is staring at me. My brother is back in the driveway. I look back. He is staring at me again. I go, you know what, Im going to go over there and see what his problem is." Thus, there was no evidence that appellant had planned to provoke a confrontation with Pedro by cursing at his children and was "lying in wait" to attack him with a knife.
Respondent admits that the trial court relied on inaccurate information: "[T]he . . . characterization of the facts by the trial court was inaccurate. Thus, no evidence was presented at appellants trial that on the day appellant stabbed Pedro, appellant had cursed at Pedros children . . . ." But respondent contends: "Despite the trial judges incorrectly characterizing the facts that led to appellants stabbing of Pedro, . . . another remand of the instant case to the trial court for resentencing is not warranted because, in light of the seriousness of appellants assault with a deadly weapon on Pedro, it is not reasonably probable the trial judge or any other judge would impose a sentence of less than six years in prison at another resentencing hearing."
Appellants trial counsel did not object to the trial courts misstatement of the facts. Respondent does not contend that the failure to object constituted a waiver. Accordingly, we do not consider this issue.
We conclude that appellant was denied due process of law and that his sentence must be reversed. In Townsend v. Burke (1948) 334 U.S. 736, an unrepresented defendant was sentenced based on inaccurate material information concerning his criminal record. The court held that "[s]uch a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand." (Id., at p. 741.)
Unlike the defendant in Townsend, appellant was represented by counsel. But the raitonale of Townsend should still apply to him. In United States v. Weston (9th Cir. 1971) 448 F.2d 626, 634, the court stated:" In Townsend v. Burke, supra, the Supreme Court made it clear that a sentence cannot be predicated on false information." In Farrow v. United States (9th Cir. 1978) 580 F.2d 1339, 1359 (en banc), the court declared," The clear teaching of Townsend and Weston is that a sentence will be vacated on appeal if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." The Farrow courts interpretation of Townsend was confirmed in United States v. Safirstein (9th Cir. 1987) 827 F.2d 1380, 1387: "A sentence must be vacated if the district court demonstrably relies upon false or unreliable information. Farrow v. United States, [supra, 580 F.2d at p. 1359]. Unreasonable inferences and material assumptions which find no support in the record fall within the ambit of the Farrow rule. [Citation.] A sentence based upon them is just as dependent on misinformation of a constitutional magnitude as a sentence predicated on unconstitutionally obtained convictions or other manner of improper and inaccurate information. [Citation.]"
In People v. Eckley (2004) 123 Cal.App.4th 1072, 1080-1081, the appellate court cited Townsend, Weston, and Safirstein in support of its decision vacating a sentence that was based on erroneous information. The defendant in Eckley was denied probation and sentenced to prison. The trial court relied on sentencing documents that contained material factual misstatements which "exaggerated defendants callousness." (Id., at p. 1081.) "In announcing its probation and sentencing decisions, the [trial] court emphasized defendants callousness." (Ibid.) The appellate court held that the defendants sentence must be vacated because the trial courts reliance on the inaccuracies had denied him due process of law. The appellate court noted: "Although not all the procedural safeguards required at trial also apply in a sentencing or probation hearing, such a hearing violates due process if it is fundamentally unfair. [Citation.] Reliability of the information considered by the court is the key issue in determining fundamental fairness in this context. [Citation.] A courts reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process." (Id., at p. 1080.)
Here the trial court relied on material inaccuracies in denying appellant probation. These inaccuracies were "demonstrably made the basis for the sentence." (Farrow v. United State, supra, 580 F.2d at p. 1359.) The resentencing hearing, therefore, was fundamentally unfair and constituted a denial of due process. "We vacate the sentence and the order denying probation and remand for a new hearing to ensure that these material inaccuracies do not affect the result." (People v. Eckley, supra, 123 Cal.App.4th at p. 1081.)
We repeat what we said at pages 7-8 of the prior unpublished opinion: "We do not mean to suggest by our reversal that on remand the trial court should grant probation. The trial court would have acted well within its discretion if it had decided that appellant was ineligible for probation." But a trial court does not act within its discretion when it denies probation based on facts and inferences that are contrary to the evidence.
We deny appellants request that the matter be transferred to a different judge for resentencing. We find no evidence that the current judge is biased against appellant.
Disposition
The judgment is reversed as to the sentence only, and the matter is remanded for resentencing consistent with this opinion.
We concur:
GILBERT, P.J.
COFFEE, J.