People v. Nunez CA2/8

Filed 12/18/20 P. v. Nunez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B302671
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA139753)
v.
JOSE RAMOS NUNEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Olivia Rosales, Judge. Affirmed.
John F. Schuck, 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, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Jose Nunez fatally shot his brother-in-law in the chest and
head for no apparent reason. A jury convicted him of first degree
murder and found true firearm enhancement allegations. In a
prior opinion, we affirmed the judgment of conviction, but
remanded the case for the trial court to exercise its discretion
whether to strike the firearm enhancement allegations. The
court declined to do so, and Nunez appealed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
The morning of August 2, 2015, Nunez was at home with
his wife, Deborah Nava, and his four children. At the time they
were living with Deborah’s brother, Joe Nava.2 Deborah heard a
gunshot, and she ran to the back of the house where she saw
Nunez holding a rifle. Nunez was reluctant to give up the
firearm, but one of his children was eventually able to wrestle it
away from him. The child then threw the rifle in a swimming
pool.
Deborah ran to Joe’s bedroom and found him on the floor,
unresponsive. Joe suffered gunshot wounds to his chest and the
back of his head, both of which were fatal. There were no signs
that Joe had been in a struggle before he was shot.
According to one of his children, Nunez had recently been
mourning the death of a family member and appeared depressed.
The child had seen Nunez drinking the day before the shooting.
Another child said Nunez becomes paranoid when he drinks
alcohol.
1 We take many of the facts from our prior nonpublished
opinion in this case, People v. Nunez (Mar. 6, 2018, B284222)
[nonpub. opn.].
2 We refer to Deborah Nava and Joe Nava by their first
names for the sake of clarity.
2
Nunez initially told police that a stranger shot Joe and
then ran out the back of the house. In a subsequent interview,
he said he was drunk and high at the time of the shooting, and he
did not “remember anything.” After an officer remarked that it
was “obvious” he shot Joe, Nunez claimed Joe threatened his life,
he then went to Joe’s room with his rifle, and the gun fired when
Joe tried to grab the weapon. Nunez recounted a similar story at
trial. He could not explain how Joe suffered a gunshot wound to
the back of the head.
A jury found Nunez guilty of first degree murder and found
true that he personally and intentionally discharged a firearm,
causing great bodily injury and death within the meaning of
Penal Code section 12022.53, subdivisions (b), (c), and (d).3 The
court sentenced him to 25 years to life for the first degree murder
and 25 years to life for the firearm enhancement pursuant to
section 12022.53, subdivision (d). The court imposed and stayed
enhancements under section 12022.53, subdivisions (b) and (c).
Nunez appealed, and this court affirmed the judgment of
conviction. (See People v. Nunez, supra, B284222.) However, we
remanded the case so the trial court could exercise its discretion
whether to strike the firearm enhancement allegations pursuant
to section 12022.53, subdivision (h).
On remand, Nunez filed a resentencing memorandum
requesting the court strike the firearm enhancement allegations.
In support, he submitted evidence showing he has a history of
depression and psychosis linked to substance abuse, including
two involuntary hospitalizations.
3 All further undesignated statutory references are to the
Penal Code.
3
Nunez also submitted a report from a psychologist, Harry
Goldberg, who performed a psychological exam of Nunez prior to
trial. According to the report, Nunez told Goldberg he used
excessive amounts of alcohol and methamphetamines the day of
the murder. His brother-in-law, Joe, confronted him about his
drug use and the fact that he was not spending time with his
family. They had an exchange of words, and Joe said, “I don’t
want this shit anymore.” Nunez grabbed his rifle and intended to
threaten Joe, but he had no recollection of what happened next.
Goldberg diagnosed Nunez with moderate major
depression, severe alcohol-use disorder, and severe
amphetamine-use disorder. Goldberg explained that Nunez’s
depression triggers his substance abuse, which then triggers a
methamphetamine/alcohol induced psychotic disorder. Goldberg
opined that a “combination of his depression and intoxication
were the two factors that led to the shooting incident.
His psychiatric disorder, primarily his Major Depression was a
major contributing factor during the commission of his crime.”
Nunez additionally submitted a letter to the court in which
he took responsibility for the murder and expressed remorse.
He claimed to no longer be “that same impulsive and careless
man that committed that terrible crime.” Nunez also included
evidence showing he had participated in and completed
numerous programs while incarcerated, including courses on
restorative parenting, addiction/substance abuse, anger
management, and domestic violence.
Nunez’s probation report showed an extensive criminal
history, including a sustained juvenile petition for two counts of
assault with a semiautomatic firearm (§ 245, subd. (b)). As an
adult, Nunez suffered a felony conviction for burglary in 1993
4
(§ 459), and a felony conviction for possession of a firearm by a
felon in 2009 (§ 12021, subd. (a)(1)). He was also convicted of 12
misdemeanors, including for battery (§ 242) and two domestic
violence offenses (§§ 233.6, subd. (a), 243, subd. (e)(1)).
At the resentencing hearing, Nunez’s counsel represented
that, as a juvenile, Nunez committed assault with an automobile,
not assault with a semiautomatic firearm. The prosecution made
the same representation in its sentencing memorandum.
The court declined to strike the firearm enhancement
allegations and sentenced Nunez to an aggregate term of 50
years to life. The court explained its decision: “It is a brutal
crime. He shot him in the chest for no reason at all
claiming . . . there’s some depression. I don’t know how
depression leads somebody to then take a rifle and shoot
somebody. But assuming like that was in and of itself, he then
shot him in the back of the head. Then he lied to the police.
He actually said a stranger shot [the victim]. I don’t think that
depression or drug abuse explains that . . . . [¶] . . . Neither the
defendant nor the victim had any defensive wound. So, to me,
this is one of those incredibly shocking cases.”
The court further noted Nunez’s extensive criminal history
“dating back to 1988 in which at least from the evidence I have is
a gun was used. But even if the gun wasn’t used, obviously there
were two assaults that allegedly were committed back in 1988.
[¶] Since then, he has engaged in domestic violence batteries, a
felony burglary, felon with a firearm in 2009. So just six years
before this happened he was with a firearm when he shouldn’t
have been with a firearm.” The court noted Nunez’s history of
substance-induced psychotic episodes, but found it was not
sufficiently mitigating to justify striking the firearm allegations.
5
Nunez timely appealed.
DISCUSSION
On appeal, Nunez argues the trial court abused its
discretion in declining to strike the firearm enhancement
allegations under section 12022.53, subdivision (h). We disagree.
We review a court’s discretionary decision to dismiss or
strike a sentencing allegation for abuse of discretion. (People v.
Carmony (2004) 33 Cal.4th 367, 373 (Carmony); People v. Pearson
(2019) 38 Cal.App.5th 112, 116 (Pearson).) An abuse of discretion
occurs when the court is unaware of its discretion, considers
impermissible factors, or acts arbitrarily, capriciously, or in a
patently absurd manner. (Carmony, supra, 33 Cal.4th at p. 378.)
“ ‘ “In reviewing for abuse of discretion, we are guided by
two fundamental precepts. First, “ ‘[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.’ ” [Citation.] Second, a “ ‘decision will not be
reversed merely because reasonable people might disagree.
“An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.” ’ ”
[Citation.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” [Citation.]’ ” (Pearson, supra, 38 Cal.App.5th at p. 116,
quoting Carmony, supra, 33 Cal.4th at pp. 376–377.)
Here, the trial court did not abuse its discretion in
declining to strike the firearm enhancement allegations.
6
As Nunez seems to concede, the circumstances of his present
offense are particularly brutal. (See Cal. Rules of Court, rule
4.421(a)(1) [that the crime involved great violence or disclosed a
high degree of callousness are circumstances in aggravation].)
Nunez inflicted two fatal gunshot wounds on his brother-in-law,
without any apparent provocation, while his family members
were in the same house. His child then had to wrestle the
murder weapon away from him. Nunez also has an extensive
criminal history, including several crimes of violence, which
began while he was a juvenile and continued through his entire
adult life. (See Cal. Rules of Court, rule 4.421(b) [a defendant’s
criminal history can be a circumstance in aggravation].) On this
record, we cannot say the court’s decision not to strike the
enhancement allegations was “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at p. 377.)
Nunez asserts the court did not give sufficient weight to his
remorse or Goldberg’s opinion that the murder was caused by his
depression and substance abuse disorders. The trial court,
however, had valid reasons to discount such factors. For
example, although Nunez eventually displayed remorse for
shooting Joe, he initially denied any involvement and later
partially blamed the victim for it. (See Cal. Rules of Court, rule
4.423(b)(3) [that the “defendant voluntarily acknowledged
wrongdoing before arrest or at an early stage of the criminal
process” is a factor in mitigation (italics added)].) Moreover,
Goldberg’s report did not meaningfully address Nunez’s prior
violent crimes or all the circumstances of the murder, including
the fact that Nunez shot Joe in the back of the head and then lied
to police. The court did not act arbitrarily or irrationally in
7
concluding these circumstances were insufficient to warrant
striking the firearm enhancement allegations.
Nunez next contends the trial court erred by failing to
consider evidence showing he made positive progress and
rehabilitation while incarcerated. (See People v. Warren (1986)
179 Cal.App.3d 676, 689 [“postconviction behavior . . . must be
considered by a trial court in determining whether or not to
exercise [§] 1385 discretion in favor of striking enhancements”].)
Absent a contrary affirmative showing in the record, however, we
presume the trial court considered the relevant sentencing
factors when it determined whether to strike or dismiss the
firearm enhancement. (Pearson, supra, 38 Cal.App.5th at p.
117.) Here, the record does not affirmatively disclose that the
court ignored evidence of Nunez’s postconviction behavior while
incarcerated. Accordingly, we presume it properly considered
such evidence.
Finally, we reject Nunez’s assertion that the trial court
abused its discretion to the extent it erroneously believed his
juvenile offenses involved the use of a firearm. Although Nunez’s
counsel and the prosecutor represented that the offenses instead
involved an automobile, the probation report indicates the
sustained petitions were for assaults with a semiautomatic
firearm in violation of section 245, subdivision (b). The trial court
did not abuse its discretion in crediting the probation report over
counsels’ representations. In any event, the court acknowledged
that even if counsels’ representations were true, its decision
would stand given it is undisputed that Nunez committed some
form of assault. The court did not err on this basis.
DISPOSITION
We affirm the judgment.
8
BIGELOW, P. J.
WE CONCUR:
GRIMES, J.
STRATTON, J.
9