People v. Heredia CA2/3 ( 2021 )

Filed 1/29/21 P. v. Heredia CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302832
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA116740)
v.
LUIS HEREDIA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Juan Carlos Dominguez, Judge. Modified
and, as so modified, affirmed.
Christopher Love, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General for Plaintiff and Respondent.
________________________
A jury convicted appellant Luis Heredia of torture, injuring
a spouse, criminal threats, and attempted sodomy by force. On
appeal, Heredia contends that his torture conviction must be
reversed because the trial court declined to instruct the jury on
assault by means of force likely to produce great bodily injury as
a lesser included offense. We conclude that assault by means of
force likely to produce great bodily injury is not a lesser included
offense of torture, and, regardless, any instructional error was
harmless. Therefore, we affirm the conviction, but remand the
matter for the correction of sentencing errors.
FACTUAL AND PROCEDURAL BACKGROUND
Heredia was charged with torture (Pen. Code,1 § 206;
count 1), injuring a spouse (§ 273.5, subd. (a); count 2), criminal
threats (§ 422, subd. (a); count 3), and sodomy by use of force
(§ 286, subd. (c)(2)(A); count 4). It was alleged that he personally
inflicted great bodily injury (§ 12022.7, subd. (e)), that he
incurred a prior serious or violent felony “strike” conviction
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), and that he
incurred one prior serious felony conviction (§ 667, subd. (a)(1)).
A jury trial commenced in 2019.
1 All further undesignated statutory citations are to the
Penal Code.
2
A. Prosecution Evidence
R.R. began a relationship with Heredia in 2014, and they
had a three-year-old daughter. R.R. had two older sons who were
not related to Heredia.
1. Prior Beatings
R.R. testified about three beatings that preceded the
November 2017 beating which is the subject of this appeal.
In May 2015, after R.R. returned home from a party,
Heredia punched her in the face and kicked her repeatedly. R.R.
was pregnant at the time. She reconciled with Heredia before
their daughter was born.
In June 2016, after seeing text messages R.R. exchanged
with another man, Heredia called her a “whore” and “trash,” and
hit her in the face and arms while she held their newborn
daughter. The beating lasted two or three hours.
In May 2017, after Heredia was told that R.R. had been
“with other men,” he violently beat her in a motel bathroom for
four hours, and left her bleeding on the floor.
Photos taken after the beatings showed extensive swelling
and bruising on R.R.’s face and body. R.R. reported the incidents
to the police and obtained emergency protective orders, but no
charges were filed.
2. Charged Crime: November 2017 Beating
On November 17, 2017, R.R. had reconciled with Heredia
and they were living together. Around 1:00 a.m., Heredia came
home and accused R.R. of being in a relationship with another
man. He punched and kicked her in the head, legs, and stomach.
R.R. begged him to have mercy, but he pushed her to the ground
and called her a “ ‘whore.’ ” Heredia threatened to kill her if she
did not disclose all of her relationships with other men. Heredia
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was a construction worker and kept his tools in the apartment.
He threatened to pull her nails out one by one with pliers. He
squeezed one of her fingers with the pliers until her hand turned
black and blue.
Heredia continued beating her until 7:00 a.m. He kicked
her with his metal-tipped work boots, ordered her to undress, and
threatened to take her out in public to embarrass her for being a
“whore.” Heredia forced R.R. to perform oral sex. He then forced
her to bend down and performed anal sex, despite her screaming
and “unbearable pain.” Heredia told her she deserved the pain
because she was a “whore.” Afterwards, he ordered her to take a
shower, and drove her to a store to buy medicine for her pain.
When they returned to the apartment, Heredia took a bath and
fell asleep around 1:00 or 2:00 p.m. R.R. grabbed her daughter
and ran to a neighbor’s apartment for help.
The jury was shown photos of R.R. taken after the police
arrived and at the hospital. Her face was “beaten up” and
“deformed,” with bruises on her ears, neck, eyes, cheek, mouth,
forehead, and chin. She also had bruises on her arms, chest,
thighs, and back. R.R. was hospitalized for four days and
suffered permanent vision changes. She had three broken ribs
and a broken nose. The jury also heard recordings of R.R.’s
interviews with police officers, which were generally consistent
with her testimony.
Police officers testified that they encountered Heredia
attempting to escape the apartment by climbing through a
shattered window, and observed R.R. crying hysterically in her
neighbor’s apartment.
A forensic nurse who examined R.R. at the hospital
testified that R.R. reported being physically and sexually
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assaulted “with hands and objects,” “punched and kicked,” and
anally raped. The nurse was “quite struck by the number of
bruises on [R.R.’s] face and body,” and recalled that R.R. was
“extremely distraught.” The nurse concluded that R.R.’s injuries
were “consistent” with her account of the beating.
A photo of R.R.’s anus showed possible injury from sodomy.
Tests performed on R.R. were positive for blood in the genital
area, and negative for blood in the anus. No semen, sperm, or
male DNA was detected, and two criminologists opined that such
fluids could wash off during a shower.
3. Cross-Examination of R.R.
R.R. admitted to several inconsistencies between her trial
testimony and previous statements she had made during the
investigation, at the preliminary hearing, or in her declaration
supporting a U visa application.2 For example, she admitted she
had falsely stated that she and Heredia were not living together
in November 2017, and that she observed him using drugs. She
admitted withholding from police that her son was present
during the May 2015 beating. There were discrepancies in her
statements regarding the motel room registration in May 2017,
and Heredia’s attire during the charged crime. R.R. could not
explain why the declaration stated Heredia had raped her during
the 2016 beating. She admitted she had lied about or omitted
certain details because she did not want her children to be taken
2 A U visa authorizes victims of certain enumerated crimes—
such as rape, domestic violence, and sexual assault—who
cooperate in a criminal investigation to remain in the United
States for up to four years. (8 C.F.R. § 214.14(a)(9), (b) & (g)
(2020).) R.R. admitted using fraudulent documents when she
entered the United States, and she applied for a U visa in 2018.
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away, and part of her still loved Heredia at the time. However,
R.R. denied fabricating any of the beatings. She explained she
signed the declaration without really understanding it.
B. Defense Evidence
The defense theory was that R.R.’s testimony should not be
credited because of the inconsistencies in her accounts of the four
beatings and her motivation to lie for the prospect of obtaining a
U visa. The attorney who prepared R.R.’s declaration in support
of the U visa application testified that R.R. had verified the
accuracy of its contents. Yet certain statements in the
declaration were inconsistent with R.R.’s testimony at trial,
including details about the exact sequence of events, the manner
in which Heredia carried out the beatings, and the extent of
R.R.’s relationship with Heredia.
C. Jury Instructions
Defense counsel requested an instruction on assault by
means of force likely to produce great bodily injury as a lesser
included offense of torture. The court denied the request,
concluding that assault by means of force likely to produce great
bodily injury was not a lesser included offense of torture.
D. Verdict and Sentencing
The jury convicted Heredia of torture, injuring a spouse,
and criminal threats as charged, and of the lesser included
offense of attempted sodomy. The jury found the great bodily
injury enhancements true, and, in a bifurcated proceeding, the
court found the prior conviction allegations true. Heredia was
sentenced to a total prison term of 60 years to life, with 843 days
of presentence custody credit, consisting of 733 actual days and
110 days of conduct credit.
Heredia timely appealed.
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DISCUSSION
Heredia contends the trial court committed reversible error
by denying his request for an assault instruction because:
(1) assault by means of force likely to produce great bodily injury
is a lesser included offense of torture, and (2) there was
substantial evidence that Heredia committed assault by means of
force likely to produce great bodily injury, but not torture. We
disagree on both points and affirm. However, we remand the
matter for the correction of certain sentencing errors.
A. The Trial Court Properly Declined to Instruct the
Jury on Aggravated Assault.
1. Assault by Force Likely to Produce Great
Bodily Injury Is Not a Lesser Included Offense of Torture.
Heredia argues that, under the elements test, assault by
means of force likely to produce great bodily injury is a lesser
included offense of torture.
“There are two tests for determining whether one offense is
necessarily included in another: the ‘elements’ test and the
‘accusatory pleading’ test.” (People v. Ramirez (2009) 45 Cal.4th
980, 984.) Under the elements test, we look strictly to the
statutory elements of the offenses, not to the specific facts of the
case. (Id. at p. 985.) We ask whether all of the elements of the
lesser offense are included in the elements of the greater offense.
(People v. Martinez (2005) 125 Cal.App.4th 1035, 1042.) In other
words, “if a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense
within the former.” (People v. Lopez (1998) 19 Cal.4th 282, 288;
see also People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
The crime of torture is defined in section 206: “Every
person who, with the intent to cause cruel or extreme pain and
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suffering for the purpose of revenge, extortion, persuasion, or for
any sadistic purpose, inflicts great bodily injury as defined in
Section 12022.7 upon the person of another, is guilty of torture.
[¶] The crime of torture does not require any proof that the
victim suffered pain.”3 (§ 206.) Thus, torture has two elements:
“ ‘(1) the infliction of great bodily injury on another; and (2) the
specific intent to cause cruel or extreme pain and suffering for
revenge, extortion or persuasion or any sadistic purpose.’ ”
(People v. Burton (2006) 143 Cal.App.4th 447, 451–452.)
Relevant factors in discerning the specific intent to commit
torture include: the severity of the wounds inflicted, the presence
of scarring or disfigurement, whether the defendant made earlier
threats to the victim, and whether the defendant focused the
attack on a particularly vulnerable area. (Id. at p. 452.)
In contrast, a defining feature of the crime of assault by
means of force likely to produce great bodily injury is, by its
terms, the use of force. (See § 245, subd. (a)(4).) An assault is
“an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240; see also People v.
Navarro (2013) 212 Cal.App.4th 1336, 1344.) “One may commit
an assault [by means of force likely to produce great bodily
injury] without making actual physical contact with the person of
the victim; because the statute focuses on . . . force likely to
produce great bodily injury, whether the victim in fact suffers any
harm is immaterial.” (People v. Aguilar (1997) 16 Cal.4th 1023,
1028.) Ultimately, “the decision turns on the nature of the force
used.” (Id. at p. 1035.)
3 Section 12022.7, subdivision (f), defines great bodily injury
as “a significant or substantial physical injury.”
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Heredia argues that the infliction of “great bodily injury,”
which is an element of torture, necessarily requires the use of
“force likely to produce great bodily injury,” which defines
aggravated assault.4 But the same argument was made and
rejected in People v. Hamlin (2009) 170 Cal.App.4th 1412(Hamlin). Applying the elements test, the Hamlin court
reasoned: “Torture requires actual infliction of great bodily
injury, but it does not require that the injury be inflicted by any
means of force, let alone by means of force likely to produce great
bodily injury. For example, a caretaker would be guilty of
torturing an immobile person in his care if the caretaker, acting
with the intent to cause extreme suffering for a sadistic purpose,
deprived that person of food and water for an extended period of
time, resulting in great bodily injury to the person. In such a
circumstance, the caretaker would have inflicted great bodily
injury without using any force and thus would not be guilty of
committing assault by means of force likely to produce great
bodily injury. Because the use of force is not a necessary element
of the crime of torture, assault by means of force likely to produce
great bodily injury is not a lesser included offense of torture.”5
4 Although Heredia cites People v. Miller (2008) 164
Cal.App.4th 653, 662–663, for this proposition, that case
explained the elements of assault without analyzing whether it
was a lesser included offense of torture.
5 We find nothing in the Hamlin court’s analysis to indicate
it mistakenly believed, as Heredia contends, that “force likely to
produce great bodily injury” requires physical contact with the
victim. In addition, Heredia cites no authority for his proposition
that the deprivation of food and water is an “act of violence”
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(Id. at p. 1456.) Similarly, in concluding battery was not a lesser
included offense of torture, People v. Lewis reasoned, “[t]he
statutory definition of torture does not require a direct use of
touching, physical force, or violence, but instead is satisfied if the
defendant, directly or indirectly, inflicts great bodily injury on the
victim.” (People v. Lewis (2004) 120 Cal.App.4th 882, 888.)
We adopt the reasoning of Hamlin and conclude that
assault by means of force likely to produce great bodily injury is
not a lesser included offense of torture, because torture can be
committed by inflicting great bodily injury without any use of
force. Therefore, we find no error in the trial court’s refusal to
provide the requested instruction.
2. Any Instructional Error Was Harmless.
“Any error in instructions on a lesser included offense in a
noncapital case is subject to the [People v. Watson (1956) 46
Cal.2d 818, 836] standard of review requiring reversal only if it is
reasonably probable that a result more favorable to the defendant
would have been reached in the absence of such error.” (People v.
Stewart (2000) 77 Cal.App.4th 785, 796; People v. Beltran (2013)
56 Cal.4th 935, 955; People v. Breverman (1998) 19 Cal.4th 142,
177–178.) The test “ ‘focuses not on what a reasonable jury could
do, but what such a jury is likely to have done in the absence of
the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
carried out by force. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956 [“ ‘[a]ppellate briefs must
provide . . . legal authority for the positions taken’ ”].)
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error of which the defendant complains affected the result.’ ”
(Beltran, at p. 956, quoting Breverman, at p. 177.)
Even assuming the trial court should have instructed on
assault by means of force likely to produce great bodily injury as
a lesser included offense of torture, it was not reasonably
probable the jury would have reached a different verdict. The
evidence supporting a conviction for torture was overwhelming.
In graphic detail, R.R. testified that Heredia beat her for seven
hours while threatening to kill her if she did not disclose her
relationships with other men, tried to take her fingernails off
with pliers, kicked her with his metal-tipped work boots, forced
her to have oral and anal sex despite her cries for mercy, and
repeatedly called her a “whore” who deserved abuse and
humiliation. R.R.’s testimony was corroborated by photos of her
injuries, audio recordings of her interviews with police officers,
and expert forensic testimony. The evidence established that
R.R. was hospitalized for four days and sustained severe
bruising, disfigurement, broken ribs, a broken nose, and injuries
generally consistent with her testimony. Further, the November
2017 beating was preceded by three similarly motivated beatings.
Thus, there was overwhelming evidence of Heredia’s specific
intent to inflict great bodily injury for revenge, persuasion, or a
sadistic purpose, which “distinguishes the offense of torture from
an aggravated assault.” (See People v. Pre (2004) 117
Cal.App.4th 413, 423–424.)
In contrast, there was no evidence that Heredia only
assaulted R.R., without the specific intent to commit torture. The
only evidence the defense presented sought to undermine R.R.’s
credibility by focusing on the inconsistences in her accounts of the
four beatings, her admitted fabrication of statements made under
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oath, and her omission of certain information during the
investigation. But even if we disregarded the parts of R.R.’s
testimony that were at issue, the evidence was still insufficient to
prove that Heredia committed only an assault. R.R. testified that
despite differences in her retelling of details and the precise
sequence of events, she never fabricated the four beatings. The
undisputed evidence consistently established that the November
2017 beating was motivated by Heredia’s jealous rage, lasted
several hours, involved the use of construction equipment to
purposely inflict pain in vulnerable areas, left R.R. with severe
injuries, and was executed as a cruel, sadistic punishment for her
perceived infidelity. Thus, it is not reasonably probable that even
if the court had provided the assault instruction, the jury would
have found Heredia guilty only of aggravated assault, but not
torture.6 By reaching a guilty verdict on the torture count, the
jury necessarily concluded that any inconsistencies and omissions
in R.R.’s statements were not material to their determination of
Heredia’s guilt. Therefore, even assuming there was an
instructional error, it was harmless.
B. The Trial Court Must Correct Sentencing Errors.
Both parties agree that the abstract of judgment and
minute orders from November 20, 2019, and December 4, 2019,
must be amended to correct a number of sentencing errors.
6 It is of no consequence to Heredia’s argument that the jury
found Heredia guilty of the lesser included offense of attempted
sodomy. Sodomy by use of force (§ 286, subd. (c)(2)(A)) and
torture (§ 206) are separate, distinct crimes, and the jury’s
willingness to absolve Heredia of the greater offense of sodomy by
force does not necessarily establish it disbelieved R.R.’s account
of the November 2017 beating, as Heredia suggests.
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First, Heredia is entitled to one additional day of actual
presentence custody credit. Heredia was arrested on
November 17, 2017, and sentenced on November 20, 2019. He
was therefore entitled to 734 days of actual presentence custody
credit, rather than the 733 days awarded to him. (See People v.
Magallanes (2009) 173 Cal.App.4th 529, 537.)
Second, the narcotics registration requirement imposed
pursuant to Health and Safety Code section 11590—which has
since been repealed—must be stricken. (See Stats. 2019, ch. 580,
§ 2.) Heredia was not convicted of any narcotics offenses, so the
registration requirement was wrongly imposed. (See People v.
Pinon (2016) 6 Cal.App.5th 956, 969.)
Third, the abstract of judgment and minute orders must
reflect the four $30 court assessments the trial court orally
imposed pursuant to Government Code section 70373 for
Heredia’s four felony convictions.
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DISPOSITION
The matter is remanded for the following corrections in the
November 20, 2019 and December 4, 2019 sentencing minute
orders and the abstract of judgment: (1) one additional day of
actual presentence custody credit must be awarded; (2) the
narcotics registration requirement must be stricken; and (3) four
$30 court assessments must be imposed pursuant to Government
Code section 70373. The clerk of the superior court shall prepare
the amended minute orders and abstract of judgment reflecting
these corrections, and deliver a copy to the Department of
Corrections and Rehabilitation. The judgment of conviction is
affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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