People v. Mendoza

Filed 2/3/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306169
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA119397)
v.
RICHARD BERT MENDOZA, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mike Camacho, Judge. Affirmed in part,
vacated in part, and remanded with directions.
Christine Dubois, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Stephanie A. Miyoshi and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Defendant Richard Bert Mendoza, Jr. (Defendant) appeals
the judgment entered following a jury trial in which he was
convicted of (1) attempted extortion (Pen. Code, §§ 664, 518);1
(2) attempted robbery (§§ 664, 211); (3) assault with a deadly
weapon (§ 245, subd. (a)(1)); (4) assault with force likely to cause
great bodily injury (§ 245, subd. (a)(4)); (5) robbery (§ 211);
(6) assault with a deadly weapon (§ 245, subd. (a)(1)); and
(7) dissuading a witness (§ 136.1(b)(1)). The jury further found
true the allegations of personal use of a deadly or dangerous
weapon with respect to the first and second counts (§ 12022,
subd. (b)(1)) and for inflicting great bodily injury with respect to
the third and fourth counts (§ 12022.7, subd. (a)). The trial court
imposed an aggregate sentence of 24 years and 4 months.
Defendant contends: (1) his conviction for attempted extortion
was unsupported by evidence; (2) he should not have been
separately sentenced for distinct criminal acts committed during
a continuous attack; and (3) multiple issues pertaining to the
trial court’s exercise of discretion in sentencing him require
resentencing. We agree in limited part due to a change in the
law, vacate a portion of Defendant’s sentence, and remand for
resentencing as set forth below.
BACKGROUND
Defendant’s convictions stem from two separate criminal
episodes in the city of Pomona occurring weeks apart in 2018.
The Spadra Cemetery Incident
On the evening of September 16, 2018, young cyclists on a
group ride sought to take a shortcut through the Spadra
1
Undesignated statutory references are to the Penal Code.
2
Cemetery. As one of the group’s leaders, Jeremy Chapa, was
trying to locate a trail he wanted to use, Defendant emerged from
the bushes and demanded to know what Chapa was doing there.
Defendant’s girlfriend, Valerie Gorostiza, emerged a few seconds
later.
When he confronted Chapa, Defendant was holding a
realistic replica revolver that Chapa believed at the time to be
real. Defendant approached Chapa and pointed the weapon at
him. Chapa explained his presence to Defendant and offered to
leave immediately. Instead of letting the cyclists pass, Defendant
ordered Chapa to the ground and Chapa complied. Defendant
then put the weapon to Chapa’s head. When another cyclist, Jose
Garcia, attempted to intervene, Defendant left Chapa and pistol-
whipped Garcia in the face. Garcia fell to the ground and
Defendant returned to Chapa. Defendant then ordered Chapa to
hand over his backpack and empty his pockets. Chapa complied,
handing over his phone, hat, backpack, and wallet to Defendant
who, in turn, handed them to Gorostiza. Defendant then used
another phone to photograph Chapa’s I.D. and told Chapa that if
he reported the incident to police or returned to the area he
would “come into [Chapa’s] house and make sure [he] paid for
what [he] did.” Defendant then returned Chapa’s backpack and
wallet, but not his phone or hat, and demanded that Chapa leave.
Chapa reconvened with some of the other cyclists shortly
thereafter and reported the incident to a 911 dispatcher using
another cyclist’s phone. Police responded and Chapa provided a
statement.
The next day, Pomona police officers went to the area
where Chapa was robbed to investigate. There, they encountered
a homeless encampment occupied by Defendant, Gorostiza, and
3
two other adults. After speaking with Defendant, officers
searched his duffel bag. In the bag, they found a realistic-looking
replica revolver. Defendant explained that he had found it four
or five days prior.
A few days later, Chapa spoke with a detective at the
Pomona police station. He was shown photographs of a revolver,
six women, and six men. From those photographs, he confirmed
that the revolver in the photograph looked like the weapon
Defendant used in the attack and identified a photograph of
Gorostiza as looking similar to Defendant’s companion at the
cemetery. Chapa did not identify Defendant.
Officers arrested Defendant and Gorostiza at a park in
Pomona several weeks later. At the time of his arrest, Defendant
had two phones in his possession, one of which had photographs
of Chapa’s I.D. stored in its memory card. In prison phone calls
he made while awaiting trial, Defendant discussed using
knowledge of Chapa’s address to make the charges against him
“go away,” and shared the address with various associates.
Chapa lived at the address shown on his I.D. at the time of the
Spadra Cemetery incident. However, Chapa no longer lived there
at the time of Defendant’s trial.
For his conduct in the Spadra Cemetery incident, the jury
convicted Defendant of (i) robbery of Chapa (§ 211); (ii) assault of
Garcia with a deadly weapon (§ 245, subd. (a)(1)); and
(iii) dissuading Chapa as a witness (§ 136.1(b)(1)).
The Attack On Michael Reyes
Michael Reyes, an SSI recipient who lived with his parents,
was at home on October 2, 2018, listening to music by his
swimming pool. Defendant entered the property uninvited
through a broken fence, tapped Reyes on the shoulder, and
4
demanded “Where is my fuckin’ money? Give me my fuckin
money or I’m going to kill you.”
Reyes interpreted this as a demand for the “tax” that
Defendant collected from him every month. For the
approximately six years Reyes had lived in Pomona, he paid
Defendant $100 on the first of each month—the same day his SSI
benefits were funded. He did so because Defendant told him, in
Reyes’s words, that Reyes had to pay “taxes to live in Pomona,
like, to do stuff, like, to go around to stores and parks and
something.” Reyes believed that Defendant was a gang member
and that Defendant would “beat [Reyes] up or hurt [him] or
something, hurt [his] family” if he did not pay the “taxes.” Even
though Defendant used fear to induce Reyes to pay him $100 of
his monthly SSI benefits, Reyes considered Defendant a friend
and the two frequently drank beer and smoked cigarettes
together at Reyes’s house.
On the occasion of October 2, 2018, Defendant had only $5
on him, not the usual $100. He gave Defendant the $5 to “calm
him down” and told him he had to go inside to get more money.
Before Reyes had a chance to do so, however, Defendant attacked
him. Defendant first swung a knife at Reyes’s midsection four
times but did not injure him. Then, he swung the knife at
Reyes’s face. Reyes deflected the knife with his hand, sustaining
a large laceration, but was “too slow” to block Defendant’s
subsequent punch. That punch knocked out two of Reyes’s teeth
and caused profuse bleeding. Defendant then relented and
allowed Reyes to go inside his house.
In prison phone calls he made while awaiting trial,
Defendant instructed associates to prevent Reyes from appearing
at a court hearing in the matter. After Reyes appeared and
5
testified at the hearing, Defendant instructed an associate to
“talk to Gilly [another associate] ASAP and let him know what
that fool did, homie. And let him know, fuckin’, you know what I
mean. I said talk to Diablo [another associate].”
For his conduct relative to Reyes on October 2, 2018, the
jury convicted Defendant of (i) attempted extortion of Reyes
(§§ 664, 518); (ii) attempted robbery of Reyes (§§ 664, 211);
(iii) assault of Reyes with a deadly weapon (§ 245, subd. (a)(1));
and (iv) assault of Reyes with force likely to cause great bodily
injury (§ 245, subd. (a)(4)).
For the various convictions stemming from the two
separate incidents, the trial court imposed an aggregate term of
24 years and four months imprisonment. In accordance with
section 1170.1, subdivision (a), the court based the principal term
on Defendant’s conviction for assaulting Reyes with a deadly
weapon, as enhanced (i) for causing great bodily injury
(§ 12022.7, subd. (a)); (ii) under the Three Strikes laws
(§§ 1120.12, subds. (a)-(d) & § 667, subds. (b)-(i)); and (iii) for a
prior conviction of a serious felony (§ 667, subd. (a)(1)). It imposed
subordinate terms, subject to applicable enhancements, for all
other convictions other than the attempted robbery and
attempted extortion of Reyes. The court stayed sentences for the
latter two convictions pursuant to section 654.
Defendant timely appealed.
DISCUSSION
I. Substantial Evidence Supported Defendant’s
Conviction For Extorting Reyes On October 2, 2018
Defendant argues the evidence was insufficient to support
his conviction for attempted extortion, on the premise that
Defendant’s actions were inconsistent with an effort to obtain
6
Reyes’s consent before using force on him. Absent such effort,
Defendant contends, his actions could be construed only as
“simple robbery” to the exclusion of attempted extortion. We find
that the record supports Defendant’s conviction for attempted
extortion.
The test for determining a claim of insufficient evidence is
whether, “ ‘on the entire record, a rational trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.]’ ”
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We must interpret
the evidence “ ‘in the light most favorable to the People and must
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.
[Citations.]’ ” (Ibid.)
Extortion is defined in section 518 as “the obtaining of
property or other consideration from another, with his or her
consent . . . induced by a wrongful use of force or fear . . . .”
(§ 518, subd. (a).) The “fear” element may be satisfied by, among
other things, a threat “[t]o do an unlawful injury to the person or
property of the individual threatened or of a third person.”
(§ 519, subd. 1.)2
2 Consistent with these provisions, the jury was properly
instructed that extortion, for the purposes of the People’s
attempted extortion charge, is made up of the following elements:
“1. The defendant threatened to unlawfully injure or
used force against the property of another person or a third
person; 2. When making the threat or using force, the
defendant intended to use that fear or force to obtain the
other person’s consent to give the defendant money or
property; 3. As a result of the threat or use of force, the
7
Defendant correctly notes that “ ‘[t]he crime of extortion is
related to and sometimes difficult to distinguish from the crime of
robbery.’ [Citation.]” Like extortion, robbery involves obtaining
property by “force or fear.” (§ 211.) Unlike extortion, robbery
also requires (i) felonious intent (i.e., the intent to permanently
deprive the victim of his property); (ii) that the property be on or
in the immediate presence of the victim; and (iii) that the
property be obtained against the victim’s will. (Ibid., see also
People v. Torres (1995) 33 Cal.App.4th 37, 50 (Torres).) Extortion
requires none of these things but does require intent to induce
the victim to part with property “with his or her consent.” (§ 518,
subd. (a).) However, the requisite “consent” is not true consent
but rather the coerced compliance with a demand induced by the
perpetrator’s threat. (See People v. Goodman (1958) 159
Cal.App.2d 54, 61 [requisite consent is “coerced and unwilling”];
People v. Goldstein (1948) 84 Cal.App.2d 581, 586 [“The victim of
an extortioner might openly consent to the taking of his money
‘and yet protest in his own heart’ against its being taken.”]; see
also CALCRIM No. 1830 [“Consent for extortion can be coerced or
unwilling, as long as it is given as a result of the wrongful use of
force or fear”].)
Relying on Torres, supra, 33 Cal.App.4th at page 52,
footnote 7, Defendant contends that robbery necessarily “involves
an immediate threat, while extortion is commonly based on a
threat of future harm.” To the extent that the dicta in Torres
other person consented to give the defendant money or
property; and 4. As a result of the threat or use of force, the
other person then gave the defendant money or property.”
8
might be read as creating such a bright-line distinction, we
respectfully disagree.
While extortion may “commonly” involve a threat of future
harm, the statute does not so require. Section 518 does not
prescribe a minimum opportunity for the victim to “consent” to
avoid the harm threatened. And, as the “consent” is not actual
consent but coerced capitulation, we see no reason to distinguish
between threats of immediate harm, that leave little time to the
victim to consider his options, and threats of far-off harm, that
offer more time for reflection. Indeed, the more immediate the
threat, the more likely it is to prompt compliance, strengthening
the inference that the perpetrator sought to induce the victim’s
“consent” within the meaning of section 518.3
3 The Torres court relied on more than just the immediacy of
the threat in rejecting the defendant’s argument that he had
attempted only extortion, and not robbery, in demanding money
before shooting his victim in the head. It also considered the
defendant’s words (“give [me] the money ‘now’ or ‘I [blow] your
brains out’ ”) and corresponding actions (simultaneously grabbing
the victim by the hair and placing a gun to his head). (Torres,
supra, 33 Cal.App.4th at pp. 51-52.) The court reasoned that,
because the defendant displayed an “intent to take [his victim’s]
money by force or fear against his will,” his actions “negate[d] the
specific intent to obtain [the] money through consent, a necessary
element of extortion.” Threats that may appear as intent to take
a victim’s property by force do not necessarily negate the
“consent” element for extortion purposes. Indeed, such threats
may actually satisfy it. (See § 519, subd. 1. [fear used to obtain
consent for extortion purposes may be induced by threat of
unlawful injury to the victim].)
9
Just as section 518 does not limit extortion to threats of
future harm, robbery is not limited to threats of immediate harm.
Section 212 provides that robbery may be predicated on fear of
either “1. [t]he fear of an unlawful injury to the property of the
person robbed, or of any relative of his or member of his family;
or 2. [t]he fear of an immediate and unlawful injury to the person
or property of anyone in the company of the person robbed at the
time of the robbery.” (§ 212, italics added.) Because immediacy
is required only for a feared injury to someone other than the
victim or his relative, fear of a future harm to the victim or his
relative can satisfy section 212 and support a robbery conviction.4
So understood, the differences between extortion and
robbery become quite small where the perpetrator obtains
property by inducing fear in his victim by threat of injury to the
victim. We are not the first to recognize this. (See People v.
Ibrahim (1993) 19 Cal.App.4th 1692, 1699 [noting the
“subtle . . . distinction” between property taken consensually by
force or fear (extortion), and property taken nonconsensually by
force or fear (robbery)].); People v. Kozlowski (2002) 96
Cal.App.4th 853, 866 [noting “courts have sometimes found it
4 (See People v. McGee (2006) 38 Cal.4th 682, 716 [“[W]hen
the prosecution seeks to establish the ‘fear’ element of robbery by
reference to the fear sustained by a person who was in the
company of the victim at the time of the robbery (other than a
relative of the victim), the fear must be ‘of an immediate and
unlawful injury to the person or property’ of the other person, as
contrasted with Nevada’s provision encompassing fear of future
injury to the other person or his or her property.”] italics added,
overruled on other grounds in People v. Gallardo (2017) 4 Cal.5th
120, 134.)
10
difficult to distinguish these two offenses”].) Moreover,
section 520 prescribes the sentencing for extortion “under
circumstances not amounting to robbery . . . .” (§ 520.) There
would be no need for this phrase unless there were factual
circumstances where the prosecutor could have charged either
extortion or robbery and chose extortion. Courts have recognized
that while extortion is not necessarily included within the
definition of robbery, there can be factual situations where
extortion is a lesser included offense to robbery. (In re Stanley E.
(1978) 81 Cal.App.3d 415, 420–421.)
Turning to the record evidence, we easily conclude that
substantial evidence supported the jury’s verdict on attempted
extortion. For years, Defendant had collected a monthly “tax”
from Reyes on the first of each month. Reyes dutifully paid this
tax on demand. He did so out of fear Defendant would harm him
or his family if he refused. There is no indication in the record
that, prior to October 2, 2018, Defendant did resort to violence to
collect money from Reyes.
When Defendant arrived at Reyes’s house on October 2, he
demanded of Reyes: “Where is my fuckin’ money? Give me my
fuckin’ money or I’m going to kill you.” Reyes interpreted this as
a demand for the monthly “tax.” This interpretation is bolstered
by the fact that Reyes could not recall Defendant collecting the
“tax” on October 1, the day prior, nor could he recall having
borrowed money from Defendant, meaning that there was no
other money which Defendant might claim as “his.”
From this, a rational juror could conclude that Defendant
came to Reyes’s house to collect “his” monthly “tax” and that his
threat was intended to cause Reyes to pay the money by consent,
within the meaning of section 518, without actual resort to
11
violence and in accordance with the past practice of “consensual”
payments.
When Reyes handed over just $5 instead of the usual $100,
Defendant changed course. Defendant’s statements to “Gloria”
on a recorded jail telephone line reflect that he became infuriated
by Reyes’s failure to pay more. He explained: “He owed me $200
dollars [sic]. And I told him, ‘Look fool. You’re fucking with the
wrong person, fool. I want my money.’ He thought . . . he
thought I was some lame or something. So I dropped him. I hit
him as hard as I could. I buckled him and knocked out four
teeth.”5 From this, a rational jury could conclude that Defendant
first sought to obtain the money with Reyes’s “consent,” as he had
done successfully for years, and only when that attempt failed did
he decide to actually use the threatened force to attempt to obtain
the money against Reyes’s will. Substantial evidence therefore
supports Defendant’s conviction for attempted extortion.
II. The Trial Court Erred In Separately Punishing
Defendant For The Two Assault Counts
In connection with his attack on Reyes, Defendant was
properly convicted on both count 3, assault with a deadly weapon,
and count 4, assault with force likely to produce great bodily
injury. However, it was error to punish Defendant separately for
these two offenses.
5 We note that Defendant’s reference to “$200” does not
indicate Defendant was referring to something other than the
usual $100 “tax.” Other exaggerations on the same call include
that Defendant punched out “four” of Reyes’s teeth (the actual
damage was two) and that Reyes was “four feet” taller than
Defendant.
12
Section 654 provides that “in no case shall [an act or
omission that is punishable in different ways by different
provisions of law] be punished under more than one provision.”
(§ 654, subd. (a).) Because “[f]ew if any crimes . . . are the result
of a single physical act,” section 654 applies not just to a single
“ ‘ “act” in the ordinary sense . . . but also where a course of
conduct violate[s] more than one statute . . . .’ ” (Neal v.
California (1960) 55 Cal.2d 11, 19 (Neal), disapproved on another
ground in People v. Correa (2012) 54 Cal.4th 331, 334.) “Whether
a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on
the intent and objective of the actor. If all of the offenses were
incident to one objective, the defendant may be punished for any
one of such offenses but not for more than one.” (Ibid.; see also
People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
Importantly, where multiple acts evincing the same intent
are sufficiently independent to reflect a renewal of such intent,
section 654 is no bar to separate punishments. (Harrison, supra,
48 Cal.3d at p. 338 [three identical acts of sexual penetration
accomplished over the course of seven to 10 minutes separately
punishable where they were interrupted by prolonged periods of
struggle]; People v. Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter)
[three shots fired at pursuing police vehicle separately
punishable where “separated by periods of time during which
reflection was possible”].)
“Errors in the applicability of section 654 are corrected on
appeal regardless of whether the point was raised by objection in
the trial court or assigned as error on appeal.” (People v. Perez
(1979) 23 Cal.3d 545, 549, fn. 3.) “Although the question of
whether defendant harbored a ‘single intent’ within the meaning
13
of section 654 is generally a factual one, the applicability of the
statute to conceded facts is a question of law.” (Harrison, supra,
48 Cal.3d at p. 335.)
Here, the trial court identified but one objective for
Defendant’s acts of slashing at Reyes with a knife and punching
him with his fist: a desire to seriously injure Reyes out of anger
for his failure to pay defendant the full amount of his monthly
“tax.” As the trial court explained, the “vicious[] attack[] . . . with
a knife and also with [Defendant’s] fist . . . [occurred] simply
because [Reyes] wasn’t able to give [Defendant] the amount of
money that [Defendant] felt he was entitled to . . . .”
This single objective is borne out by Reyes’s testimony.
Defendant’s initial attempts to harm Reyes were with the knife,
in each case directed to areas likely to cause severe injuries. The
first four knife thrusts were at Reyes’s stomach, which missed.
The fifth was at Reyes’s face, which Reyes blocked (sustaining a
hand wound in the process). Unable to land a knife blow where
intended, Defendant “swung again” with his fist, knocking out
Reyes’s teeth. The whole episode was “kind of like a fight” that
ended after Defendant landed his devastating punch to Reyes’s
mouth.
Defendant’s recitation of the incident during a prison call
offers a condensed version of events but one that directly ties his
anger about Reyes not paying the full “tax” to Defendant’s
ultimate satisfaction in seriously injuring Reyes with a blow to
the face. Defendant felt angry and underestimated by Reyes
when Reyes failed to pay the money: “he thought I was some
lame or something. So I dropped him. I hit him as hard as I
could. I buckled him and knocked out four teeth.” Defendant’s
omission of his failed attempts to stab Reyes underscores that the
14
knife attack was merely an incident to his objective of harming
Reyes in order to show that Defendant was the “wrong person” to
“fuck[] with.” To the extent Defendant even realized he had cut
Reyes’s hand in the course of the attack, it clearly did not satisfy
Defendant’s vicious urges to harm him. As soon as he landed a
successful offensive strike—one that caused “all the blood [to]
drain out”—Defendant relented.
Their assertion notwithstanding, the People identify no
record evidence that Defendant’s knife thrust to Reyes’s face and
punch to his mouth were “separated by periods of time during
which reflection was possible.” Rather, Reyes’s testimony
supports Defendant’s characterization of the blows as a “classic
‘one-two punch.’ ” After Reyes blocked the knife thrust with his
hand, Defendant “swung again” with his fist. This happened
quickly, as Reyes lamented that he was “too slow” to block the
second blow to his face. Nowhere does Reyes indicate that there
was any interruption between the blows sufficient for Defendant
to reflect on his actions. Cases cited by the People in support of
their “time for reflection” theory are therefore inapposite.6
6 (See People v. Lopez (2011) 198 Cal.App.4th 698, 717-718
[criminal acts separated by drive to 7-Eleven]; People v. Felix
(2001) 92 Cal.App.4th 905, 915-916 [threats made to different
people at different times in different places]; People v. Gaio
(2000) 81 Cal.App.4th 919, 935 [bribes occurring months apart];
People v. Surdi (1995) 35 Cal.App.4th 685, 687–688 [episodes of
stabbing variously interrupted to buckle victim into seat belt,
discuss abandonment of victim’s body, and to drag victim from
van to riverbed]; Trotter, supra, 7 Cal.App.4th at p. 368 [gunshots
“separated by periods of time during which reflection was
15
Finally, while the trial court was correct that the two
injurious blows involved “use[s] of force” that were “completely
separate and distinct” in terms of physical motion, this is
insufficient to support separate punishments. (See Neal, supra,
55 Cal.2d at p. 19 [“Few if any crimes . . . are the result of a
single physical act,” requiring courts to inquire into the entire
course of conduct for section 654 purposes].) Nor does the fact
that defendant used a knife to inflict one wound and a fist to
inflict the other take the acts out of section 654’s prohibition.
(Cf. Trotter, supra, 7 Cal.App.4th at p. 368 & fn. 4 [single versus
multiple instrumentalities of attack not dispositive]); cf. People v.
Johnson (2007) 150 Cal.App.4th 1467, 1473-1474 [noting trial
court imposed but one punishment for single continuous assault
involving multiple blows and instrumentalities].) It is the
absence of time between the slash and punch, notwithstanding
the variation in instrumentalities used, that shows there was no
reflection by Defendant on his conduct before he delivered the
punch.
For these reasons, we vacate the aggregate three-year
sentence, including related enhancements, imposed for
Defendant’s conviction on count 4, assault with force likely to
produce great bodily injury. The trial court is directed to
resentence Defendant on count 4 pursuant to our mandate in
section IV, infra.
possible”]; Harrison, supra, 48 Cal.3d at p. 338 [acts of sexual
penetration interrupted by prolonged periods of struggle].)
16
III. The Trial Court Acted Within Its Discretion In
Denying Appellant’s Romero7 Motion
“[A] court’s failure to dismiss or strike a prior conviction
allegation is subject to review under the deferential abuse of
discretion standard.” People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony).) To show an abuse of discretion, the defendant
must show that the trial court’s decision was “so irrational or
arbitrary that no reasonable person could agree with it.” (Id. at
p. 377.) Accordingly, “a trial court will only abuse its discretion
in failing to strike a prior felony conviction allegation in limited
circumstances. For example, an abuse of discretion occurs where
the trial court was not ‘aware of its discretion’ to dismiss
[citation], or where the court considered impermissible factors in
declining to dismiss.” (Id. at p. 378.)
Even when “ ‘a trial court has given both proper and
improper reasons for a sentence choice, a reviewing court will set
aside the sentence only if it is reasonably probable that the trial
court would have chosen a lesser sentence had it known that
some of its reasons were improper.’ [Citation.]” (People v.
Leonard (2014) 228 Cal.App.4th 465, 503 (Leonard).)
A trial court deciding, or appellate court reviewing the
decision, whether to strike a prior felony conviction allegation
under section 1385, subdivision (a), “must consider whether, in
light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the
7 People v. Superior Court (Romero) 13 Cal.4th 497.
17
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161
(Williams).) “[T]he circumstances must be ‘extraordinary . . . by
which a career criminal can be deemed to fall outside the spirit of
the very scheme within which he squarely falls . . . .’ ” (Carmony,
supra, 33 Cal.4th at p. 378.) As such, in reviewing the trial
court’s decision, “the circumstances where no reasonable people
could disagree that the criminal falls outside the spirit of the
three strikes scheme must be even more extraordinary.” (Ibid.)
Here, the trial court gave primary weight to Defendant’s
extensive criminal history. His chain of offenses from 1991
through and including the Spadra Cemetery and Reyes
incidents—which occurred just 16 days apart—reflect a career
criminal who is unable to remain out of prison for more than a
few years at a time. Indeed, in the 27 years between his prior
strike and his commission of his latest offenses, Defendant had
been incarcerated four times pursuant to sentences totaling
nearly 17 years for various felonies, including violent crimes and
firearm violations. The trial court did not abuse its discretion in
concluding that Defendant falls within “the spirit of” the Three
Strikes law. (Cf. People v. Mantanez (2002) 98 Cal.App.4th 354,
366 [10 felony convictions resulting in four separate prison terms
and multiple parole violations over 17-year period brought
defendant “squarely within the Three Strikes ambit”].)
Defendant does not argue that considering his criminal
history was improper. However, he does imply that the trial
court erred by referring to that history as “controlling.” As
Defendant acknowledges, this statement can be interpreted as
18
the trial court’s identification of the factors it relied on most
heavily in conducting the analysis prescribed by Williams, as
opposed to a perceived limit on its discretion. Indeed, this is the
only possible interpretation given that the trial court correctly
identified the Williams factors and made a deliberate record
addressing them.
Defendant next takes issue with certain of the other factors
the trial court considered. He argues that the trial court gave
“significant weight to factors that were not supported by the
testimony at trial or in the probation report,” namely that
(i) Reyes was a “developmentally disabled adult”; (ii) Defendant
“extorted” Reyes for three years before the date of the charged
crimes and had already benefitted from leniency in the
prosecutor’s decisions not to charge those prior acts; and
(iii) Defendant endangered Chapa and influenced his testimony
by disseminating Chapa’s address to other gang members. While
the trial court’s articulation of these considerations may have
been imprecise in some respects, we find no error in its denial of
Defendant’s Romero motion.
A. Consideration Of Reyes’s Mental Capacity.
Whether or not Reyes fit a specific definition of
“developmentally disabled adult,” there was ample evidence that
Reyes’s level of cognitive function rendered him particularly
vulnerable to Defendant’s exploitation. The record further
reflects that Defendant recognized Reyes’s vulnerability and did,
in fact, exploit it. The trial court did not err in deeming this
conduct “reprehensible” in considering appropriate punishment
for Defendant’s conduct.
Reyes’s preliminary hearing testimony provides ample
basis on which to conclude he had a mental disability. For
19
example, he could not come up with the word for “street” on his
own and spelled the name “Huero” “W-E-O-E.” He also
demonstrated confusion about the nature of his relationship with
8
Defendant and exceptional credulity in accepting the premise of
Defendant’s “tax” scheme. Moreover, Defendant’s girlfriend
thought Reyes “seemed” “mentally disabled” and Defendant
referred to Reyes in prison calls as an “idiot” and a “fool.”9 And,
as was well known to Defendant, Reyes was an SSI beneficiary—
a program that benefits, among others, the disabled.
Substantial evidence supports the conclusion that
Defendant exploited a victim made especially vulnerable by his
mental disability, and the trial court properly considered this in
evaluating the Williams factors.
8 Reyes testified Defendant had been “taxing” him “since the
first time I met him, about six years.” Nonetheless, Reyes still
perceived Defendant as a “friend.” Reyes and Defendant’s
purported “friendship” lasted until the date that Reyes failed to
pay the monthly “tax,” when Defendant viciously attacked Reyes.
Defendant attempts to characterize the $100 monthly “tax” Reyes
paid to Defendant as a fair exchange for Defendant’s “friendship”
and part of a “symbiotic” relationship. To the extent this
characterization is reasonable at all, it is by no means the only
reasonable interpretation of the evidence.
9 Defendant appears to be deliberate with his descriptors of
others. For example, he referred to the 26 year old Chapa as a
“kid” but consistently referred to Reyes, who was also a large
man, as a “fool,” “idiot,” or “fat.”
20
B. Defendant’s Prior “Extortion” Of Reyes And Lack
Of Charges.
Defendant contends that the trial court should not have
characterized his historical “tax” scheme as extortion nor
considered the lack of charges for that scheme in ruling on his
Romero motion. In support, Defendant quotes People v. Avila
(2020) 57 Cal.App.5th 1134, 1142 (Avila) for the proposition that
“[r]uling on a Romero motion requires consideration of the nature
and circumstance of the crime actually committed, not a crime
that might have occurred.” (Ibid.) This quote was directed at
speculation by the trial court about what further acts the
defendant might have committed but for police intervention.
(Ibid.) No such speculation occurred here.
In referring to Defendant’s prior “extortion” of Reyes, the
trial court was referring to testimony from Reyes that, out of fear
that Defendant would harm him or hurt his family, he paid
Defendant $100 out of his SSI benefits on the first of each month
for six years. Whether or not this constituted extortion within
the meaning of section 518, and whether or not it was charged,
the trial court was entitled to consider Defendant’s prior behavior
evident in the record in considering the Williams factors. The
trial court’s reference to what additional charges Defendant
might have faced for this conduct simply underscores the
seriousness of the conduct as weighing against a sentence
mitigation, not an effort to punish an unproven crime. It was not
necessary for the trial court to have insight into the People’s
charging decisions to use the substantial evidence of Defendant’s
conduct in this way.
21
C. Witness Intimidation.
The trial court properly considered Defendant’s efforts to
discourage testimony of witnesses to his September and October
2018 crimes. In discussing this, the court began with
Defendant’s efforts to prevent Reyes from testifying. These
efforts are clearly reflected in Defendant’s recorded jailhouse
calls. It then turned to Defendant’s efforts to intimidate Chapa.
The court noted that Defendant had photographed Chapa’s ID
and placed Chapa’s “safety in danger by distributing his address
to fellow gang members . . . .”10 The court then concluded that
Defendant successfully chilled Chapa’s testimony through these
actions.
Defendant argues that the record does not support the
finding that, by sharing Chapa’s Brea Canyon Road address with
fellow gang members, Defendant endangered Chapa and chilled
his testimony, because Chapa no longer lived at the Brea Canyon
Road address at the time of trial. Defendant’s reading of the trial
court’s reasoning is too narrow.
First, substantial evidence supports the conclusion that
Defendant endangered Chapa by distributing his name to fellow
gang members. Although Chapa no longer lived on Brea Canyon
Road at the time of the September of 2019 trial, he did live there
at the time of the robbery in September of 2018. Although the
record does not reflect the date on which Chapa moved, the trial
court could reasonably deduce that Defendant’s efforts to
10 The trial court’s reasoning is somewhat fractured by
Defendant’s repeated interruptions on the record but its overall
analysis is sufficiently clear for purposes of our review.
22
disseminate his address (as well as Chapa’s name) to gang
members shortly after the robbery endangered Chapa.
About six weeks after the robbery, Defendant told “Mundo”
11
that “this shit will all go away . . . because [my hyna ] has all the
information to where these people are.” He instructed “Mundo”
to bail out his “hyna” who “knows where this kid’s at.” He
continued, “[c]all my sister and tell her . . . Huero wants me to get
this girl out and my sister knows already what time it is. My
sister has the card, fuckin’, and like it [sic] told you. Just get my
hyna out. This shit will all go away baby boy.”12 About a month
later, Defendant gave Chapa’s address to “Sis,” who gave it to
“Cuba.” Defendant then told “Cuba” to give it to “Gilly,” and to
“tell Gilly I says fucking . . . you know what I mean. Tell Gilly I
said fuckin’ do me that favor. Okay?”
Defendant appears to be contending that there was no
basis to conclude Defendant endangered Chapa if the address
given by Defendant was no longer current. But nowhere did
Defendant limit his directives to a single address. It was clearly
implicit that he wanted his associates to find Chapa, and not to
11
From the context, we infer that Defendant’s references to
“my hyna” are to Gorostiza. The term “hyna” implies a female
and Defendant’s requests for help in bailing “his hyna” out make
clear he is referring to his girlfriend and co-defendant who was
arrested with him.
12 Notably, Defendant had recently told “Sis” to suggest
conforming testimony to witnesses to both the Spadra and Reyes
incidents. His instructions were so explicit that she warned him
he was implicating her in a crime by giving them to her.
23
look for him at a single address and then give up if he had moved.
Giving the last known address for someone is normally helpful in
tracking down their current whereabouts. Current occupants
and neighbors can be asked (or intimidated into revealing) if they
know the new address, or if mail is being forwarded. The trial
court was not mistaken in relying on Defendant’s giving of
Chapa’s last known address as supporting the conclusion
Defendant was trying to intimidate Chapa and endangering his
safety.
Taken together, there is substantial evidence that
Defendant directly and indirectly provided fellow gang members
Chapa’s address with the intention that they use that
information to intimidate Chapa for the purpose of influencing
his testimony. Notwithstanding his argument that “[Defendant]
did not tell anyone to intimidate Jeremy Chapa,” the record
supports the conclusion that his thinly coded messages put
Chapa’s safety at risk.
There is also substantial evidence that Chapa was
intimidated by Defendant’s threats, from which the trial court
could conclude that his testimony was influenced. Chapa
testified that, when speaking to the police shortly after the crime,
he was frightened about Defendant’s threats and that Defendant
had his address, and further testified that he remained
frightened at the time of trial.
Even if Defendant were correct that the trial court had
erred in finding that Defendant endangered Chapa and chilled
his testimony by sharing the Brea Canyon Road address with
gang associates, our conclusions would not change. It is not
reasonably probable that the court would have chosen a lesser
sentence but for any such alleged error. The trial court expressed
24
grave concerns about Defendant’s “numerous attempts to
unlawfully prevent or dissuade witnesses from testifying,” calling
it “a common theme across this entire case.” Defendant’s
dissemination of Chapa’s address to fellow gang members was
13
but one part of his scheme to interfere with the judicial process.
If Chapa’s former address were viewed as irrelevant, that one
factor was not critical to the trial court’s overall sentencing
choices, and therefore any error would be harmless. (Leonard,
supra, 228 Cal.App.4th at p. 503.)
Finally, Defendant argues that the trial court erred in
failing to consider that he was just 19 at the time of his 1991 first
strike. For this proposition, Defendant relies on Avila, supra,
wherein the court found error in the trial court’s determination
that it was prohibited from considering the factor of age in
deciding a Romero motion. (Avila, supra, 57 Cal.App.5th at
p. 1142.) As an initial matter, the trial court here did consider
Defendant’s first strike was in 1991, and inherent in that
consideration is that Defendant was nearly 30 years younger at
the time. In any event, Avila does not mandate consideration of a
13 The trial court would also have been aware of the evidence
presented that Defendant also endangered Reyes’s safety when,
three days after Reyes testified at the preliminary hearing,
Defendant told “Julian” to “talk to Gilly ASAP and let him know
what that fool [Reyes] did [testified], homie. And let him know,
fuckin’, you know what I mean. I said talk to Diablo.” Various
recorded calls reflect that Defendant’s associates knew where
Reyes lived and “Julian,” “Gilly,” and “Diablo” could easily have
interpreted Defendant’s message as an instruction to take
retributive action against Reyes for giving testimony against
Defendant.
25
defendant’s age at the time of a first strike; it simply identifies
such age as potentially relevant. By identifying broad categories
of information—“the nature and circumstances of [the
defendant’s] present felonies and prior serious and/or violent
felony convictions, and the particulars of [the defendant’s]
background, character, and prospects” (Williams, supra, 17
Cal.4th at p. 161)—as the factors relevant to the Romero
analysis, Williams gives trial judges substantial leeway in
determining the most significant facts in each case. We find no
basis to conclude that the trial court misapplied Williams or
otherwise abused its discretion in denying Defendant’s Romero
motion.
IV. Remand For Resentencing To Exercise Discretion In
Light Of Recent Amendments To The Penal Code
At a sentencing hearing in May of 2020, the trial court
purported to strike certain prior felonies that would otherwise
have resulted in an enhancement under section 667.5,
subdivision (b), as was in effect prior to January 1, 2020.
However, such felonies no longer qualified for enhancement
under section 667.5 as in effect at the time of the hearing.
Though the court reached the right result, the record indicates
that it believed doing so was discretionary rather than
mandatory.
In addition, pursuant to Assembly Bill No. 518 (AB 518),
section 654 was amended on January 1, 2022 to give trial courts
discretion in selecting the punished offense for conduct
26
14
punishable under multiple provisions of law. Under existing
law, section 654 dictates punishment based on the offense for
which the longest prison term is prescribed. Here, applying
current section 654, the trial court selected count 3, assault with
a deadly weapon in violation of section 245, subdivision (a)(1), as
the punishable offense subject to section 654 in relation to the
Reyes incident. Under amended section 654, the trial court
would have had discretion to select count 1 or count 2 (or, for the
reasons stated in section II, supra, count 4) as the punishable
offense.
Defendant raised the effect of AB 518 by supplemental
brief, to which the People filed a response. The People urge that
remand to consider the effect of AB 518 is unnecessary as the
trial court evinced an intent to “impose the maximum possible
sentence as to [Defendant’s] offenses against Reyes.” Given that
the trial court purported to exercise discretion in a manner
beneficial to Defendant with respect to section 667.5, subdivision
(b)—a matter outside of the court’s discretion—we cannot agree
that the record is sufficiently clear to render remand a
meaningless exercise.
The trial court should have the opportunity exercise its
discretion anew in light of the recent changes to the Penal Code.
We therefore remand for resentencing on all counts.
14 Defendant is entitled to the benefit of any amendment to
applicable sentencing laws occurring before his judgment
becomes final. (People v. Vieira (2005) 35 Cal.4th 264, 306.)
27
DISPOSITION
The judgment is affirmed in part, vacated in part, and
remanded in part.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We concur:
STRATTON, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
28