People v. Chavez CA3 ( 2024 )

Filed 9/20/24 P. v. Chavez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C099194
v. (Super. Ct. No. 19FE011573)
PEDRO CHAVEZ,
Defendant and Appellant.
Defendant Pedro Chavez punched N.D. multiple times in the face, causing injuries
to her nose and mouth. N.D. testified that defendant had restrained her, raped her, and
tried to suffocate her. When she bit him to get away, he punched her repeatedly.
Defendant described a different version of events, saying he awoke to find N.D. on top of
him. He tried to push her off, she bit his fingers, and he punched her.
A jury acquitted defendant of rape, assault with intent to commit rape, and false
imprisonment, but convicted him of assault by means of force likely to produce great
bodily injury. The jury found true an allegation that defendant inflicted great bodily
injury during the assault, but it also found not true the allegation that the crime involved
great violence or other circumstances disclosing a high degree of cruelty, viciousness, or
callousness. The trial court sentenced defendant to five years in state prison.
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Defendant now contends (1) the trial court should have instructed the jury sua
sponte on his right to stand his ground and not retreat from an assault, and also his right
to use reasonable force to prevent the commission of a felony; and (2) the trial court
abused its discretion in imposing the great bodily injury enhancement without being
aware of its discretion to dismiss the enhancement, and in concluding that defendant was
ineligible for probation without finding that he willfully inflicted great bodily injury.
Concluding that defendant’s contentions are forfeited or lack merit, we will affirm
the judgment.
BACKGROUND
On the evening of May 27, 2019, defendant went to the house of his sisters
Daniela and Gabriela. Gabriela was staying at her boyfriend’s house that night, so
defendant planned to sleep in her room. Earlier in the day, Daniela went to San Francisco
with her boyfriend and others, including N.D., a friend she met at Sacramento City
College. They returned to the house at around midnight. Defendant was in Gabriela’s
room when they arrived.
When Daniela and her group got to the house, they started playing music, hanging
out, and drinking beer. Defendant eventually emerged from Gabriela’s room and joined
them in the living room. Defendant, who was 18 at the time, drank three or four beers
and became intoxicated. N.D., who was 19 years old at the time, had a couple of beers.
At some point, Daniela and her boyfriend got into an argument and went outside.
N.D. came outside and said she was going to sleep in Gabriela’s room with defendant.
N.D. explained, “I’ll sleep by his feet so it’s not weird or anything.” Daniela went inside
to check on defendant, who was “passed out” on the couch. She nudged him awake and
asked if he was okay, and he asked her to get him a pillow. N.D. pulled on defendant’s
leg and suggested they go to his sister’s room, saying she would take care of him.
Defendant got up and accompanied N.D. to Gabriela’s room. Daniela followed them
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to the room and saw defendant lie down on the bed. N.D. told her, “I’ll take care of
him.” Daniela went back outside.
Daniela, N.D. and defendant testified consistently regarding the foregoing events.
But N.D. and defendant testified differently regarding what happened next in Gabriela’s
bedroom.
According to N.D., she got on the bed with defendant and immediately fell asleep.
When she woke up, defendant was on top of her with his pants down. He was choking
her with one hand and taking her pants down with the other while pinning her to the bed.
Defendant inserted his penis into her vagina as she told him to stop. N.D. then rolled off
the bed and tried to leave, but defendant pinned her to a wall. N.D. tried to yell for help
but defendant covered her mouth with his hand. N.D. bit his hand, and defendant
responded by punching her in the nose and mouth, causing her to fall to the floor. N.D.
tried to get up and run to the door, but defendant blocked her path and dragged her by the
hair to the ground. He choked her with both hands, punched her several more times, and
used a pillow or cloth to try to suffocate her.
In contrast to N.D.’s account of events, defendant testified that when he woke up,
N.D. was on top of him. She was straddling him, his shorts and boxers were around his
knees, and he felt her on top of his penis. Defendant told her to stop and tried to push her
off of him, but N.D. said to wait because she was almost done. When defendant again
tried to push her off of him, his hand pushed into her mouth, and N.D. bit his fingers.
Defendant reacted by punching her several times in the face. N.D. fell off of the bed and
hit the wall on her way to the floor. Defendant got up, stood there in shock for a moment,
and then put his pants back on.
Daniela testified that she and her boyfriend went to bed in her room sometime
between 4 and 5 a.m. Ten to 20 minutes later, Daniela heard a thump and went to her
sister’s room to find out what it was. N.D. was on the ground in front of the bed.
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She had blood on her and defendant “looked confused, pale, scared, crying.” Daniela
told defendant to leave and he did so.
A physical examination of N.D. revealed a nasal bone fracture as well as facial
bruising and abrasions. During a subsequent sexual assault examination, N.D. described
a sexual assault. The nurse practitioner who performed the exam testified that certain
injuries were consistent with being punched and also with possible strangulation. The
nurse did not observe evidence of a sexual assault.
The jury convicted defendant of assault by means of force likely to produce great
bodily injury, and found that he inflicted great bodily injury during the assault. The trial
court sentenced defendant to five years in state prison.
DISCUSSION
I
Defendant claims the trial court should have instructed the jury, sua sponte,
regarding (a) his right to stand his ground and not retreat from an assault, and (b) his right
to use reasonable force to prevent the commission of a felony.
A
Defendant claims the trial court should have instructed sua sponte on his right to
stand his ground and not retreat from an assault.
“A trial court must instruct on the general principles of law applicable
to a case” and possesses a sua sponte duty to instruct “ ‘on any defense, including self-
defense, . . . when there is substantial evidence supporting the defense, and the defendant
is either relying on the defense or the defense is not inconsistent with the defendant’s
theory of the case. [Citation.]’ [Citation.]” (People v. Bates (2019) 35 Cal.App.5th 1, 9
(Bates).)
Here, with respect to the crime of assault by means of force likely to produce great
bodily injury, defendant claimed self-defense, and the trial court instructed the jury with
CALCRIM No. 3470 regarding self-defense. It also instructed the jury with CALCRIM
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No. 3472, that a person may not provoke a fight or quarrel with the intent to create an
excuse to use force. In addition, the trial court instructed the jury with CALCRIM
No. 3474, that the right to use force in self-defense exists only as long as the danger
reasonably appears to exist.
Defendant does not assert on appeal that the foregoing self-defense instructions
were incorrect. Instead, he claims the trial court should have supplemented them with the
following bracketed portion of CALCRIM No. 3470: “A defendant is not required to
retreat. He or she is entitled to stand his or her ground and defend himself or herself and,
if reasonably necessary, to pursue an assailant until the danger . . . has passed. This is so
even if safety could have been achieved by retreating.” (CALCRIM No. 3470.)
But defendant did not request that the bracketed language be included in the
instruction, or object when it was not included. “ ‘Generally, a party may not complain
on appeal that an instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate clarifying or amplifying
language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan); see
People v. Landry (2016) 2 Cal.5th 52, 99-100.) Defendant’s assertion that this optional
bracketed language should have been included in the instruction given to the jury is
therefore forfeited.
B
Defendant also argues the trial court had a sua sponte duty to instruct on his right
to use reasonable force to prevent the commission of a felony. Specifically, he argues the
trial court was required to supplement the standard self-defense instructions with
CALCRIM No. 505, the pattern jury instruction on self-defense in a homicide case.
(Bates, supra, 35 Cal.App.5th at p. 7.)
Defendant cites no authority holding that a trial court has a sua sponte duty to
instruct with CALCRIM No. 505 in a non-homicide case like this one, and we know of
no such duty. To the extent defendant argues the jury would have benefitted from certain
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language found in CALCRIM No. 505 and not in CALCRIM No. 3470, it was incumbent
upon him to request such clarifying or amplifying language. (Guiuan, supra, 18 Cal.4th
at p. 570.) He did not do so.
The claim of instructional error fails to the extent it assumed a sua sponte duty; it
is otherwise forfeited.
II
Defendant further contends the trial court abused its discretion at sentencing
by (a) imposing the great bodily injury enhancement without being aware of its discretion
to dismiss the enhancement, and (b) concluding that defendant was ineligible for
probation without finding that he willfully inflicted great bodily injury. These
contentions are also forfeited.
A
We begin with the contention that the trial court imposed the great bodily injury
enhancement without being aware of its discretion to dismiss the enhancement.
Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate
Bill 81) amended Penal Code1 section 1385 to provide that a trial court shall dismiss
an enhancement if it is in the furtherance of justice to do so, except if dismissal is
prohibited by an initiative statute. (§ 1385, subd. (c)(1), (2); People v. Mendoza (2023)
88 Cal.App.5th 287, 295.) In exercising its discretion, the trial court shall give great
weight to evidence offered by the defendant that enumerated mitigating circumstances
are present. (Mendoza, at p. 295.) One such mitigating circumstance is that the
current offense is connected to prior victimization or childhood trauma. (§ 1385,
subd. (c)(2)(E).) Subdivision (c)(4) adds that the enumerated mitigating circumstances
are not exclusive. (§ 1385, subd. (c)(4).)
1 Undesignated statutory references are to the Penal Code.
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Defendant argues the probation report indicated he experienced childhood trauma
related to being sexually assaulted by a female family member. He also cites his young
age at the time of the offense, his status as a first-time offender, the jury’s finding that
the crime did not involve great violence or a high degree of cruelty, viciousness, or
callousness, and the fact that the three-year great bodily injury enhancement more
than doubled defendant’s sentence because the trial court imposed the low term of
two years for the assault. According to defendant, “[t]he sentencing
transcript . . . reflect the trial court was unaware of any aspect of its authority” to
dismiss the enhancement.
Defendant was sentenced on August 4, 2023, more than a year and a half after
the effective date of Senate Bill 81. But his trial counsel did not object to the
imposition of the enhancement or ask that it be dismissed under section 1385,
subdivision (c). The failure to do so forfeited the contention on appeal. (People v.
Carmony (2004) 33 Cal.4th 367, 373-374; People v. Scott (1994) 9 Cal.4th 331, 351-354
(Scott).)
B
We turn next to defendant’s contention that the trial court determined defendant
was ineligible for probation without finding that he willfully inflicted great bodily injury.
“A defendant is presumptively ineligible for probation under section 1203,
subdivision (e)(3), if he or she ‘willfully inflicted great bodily injury or torture in the
perpetration of the crime.’ ” (People v. Lewis (2004) 120 Cal.App.4th 837, 852 (Lewis).)
“[T]he word ‘willful’ requires the defendant’s intent to cause great bodily injury or
torture, not merely that the crime resulted in great bodily injury or torture.” (Id. at p.
853.)
Here, the jury determined that defendant inflicted great bodily injury. However,
whether he intended to cause such injury, making him presumptively ineligible for
probation, was a matter for the trial court to determine at the sentencing hearing. (Lewis,
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supra, 120 Cal.App.4th at p. 854.) The probation officer and both parties appear to have
assumed that section 1203, subdivision (e)(3) applied. The trial court specifically found
“defendant is not eligible for probation, pursuant to Section 1203(e)(3) unless the Court
finds unusual circumstances.” The trial court then cited rule 4.413(c) of the California
Rules of Court, listing factors that may indicate an unusual case overcoming the
presumption of ineligibility, and noted that “defendant is youthful and has no significant
prior criminal history.” The trial court concluded “the nature and circumstances of this
crime as compared with other instances of the same crime aggravate against a grant of
probation,” citing N.D.’s significant injuries. The trial court denied probation.
Defendant argues the trial court abused its discretion by concluding he was
presumptively ineligible for probation without making the required willfulness finding.
However, his trial counsel did not object or point out that such a finding was required in
order for section 1203, subdivision (e)(3) to apply. The failure to do so forfeited the
contention on appeal. (See Scott, supra, 9 Cal.4th at pp. 351-354.)
DISPOSITION
The judgment is affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
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