P. v. Bautista
Filed 6/21/12
P. v. Bautista CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LUIS MANUEL BAUTISTA,
Defendant and
Appellant.
F062916
(Super.
Ct. No. F09900642)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Edward Sarkisian, Jr.,
Judge.
Cara
DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa
Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Luis Manuel Bautista is serving a
life sentence without the possibility of parole for the murder of Jesus
Torres. This is his second appeal to
this court. In the first appeal (
F058176) [nonpub. opn.], we affirmed the convictions for murder (Pen. Code,
§ 187, subd. (a)),
name="_ftnref2" title="">[1] kidnapping (§ 207, subd. (a)), and
robbery (§ 211). We reversed the
conviction for arson causing great bodily
subd. (a)) because it was not supported by substantial evidence. However, we ordered the trial court to enter
a conviction for the lesser included offense of arson of property (the arson
count) (§ 451, subd. (d)). We
remanded the matter for resentencing on the arson count.
The trial court imposed an
aggravated term of three years to run consecutively for the arson count. Bautista argues the trial court abused its
discretion in doing so. We affirm the
judgment. We will, however, remand the
matter to the trial court to issue a corrected abstract of judgment.
FACTUAL AND PROCEDURAL SUMMARY
A jury convicted Bautista and his
brother, Gustavo Bautista (collectively, defendants), of
arson causing great bodily injury.
allegation that the murder was committed while Bautista was engaged in a robbery
and kidnapping and found true the enhancement that Bautista personally used a
firearm, causing death in the commission of the crime.
In the first appeal, we concluded
there was insufficient evidence to support the arson causing great bodily
injury count because there was no evidence that Torres, whose body was found in
the trunk of the vehicle, was alive when his vehicle was set on fire. We ordered the count reduced to arson of
personal property (§ 451, subd. (d)) and remanded the matter for resentencing
on that count. The remainder of the
judgment was affirmed, including Bautista’s sentence of life without the
possibility of parole for the murder.
On remand, the trial court imposed
an aggravated sentence of three years on the arson count.
DISCUSSION
Bautista argues the trial court
abused its discretion when it imposed the aggravated term on the arson
count. Bautista’s arguments are based on
a single sentence from the resentencing hearing, which does not fairly reflect
the proceedings. The trial court
stated: “For that offense, and that
count, the Court will fix the upper term or aggravated term of three
years. In the Court’s view, the factors
in aggravation outweigh those in mitigation.
This crime involved a great, if
not the greatest, form of callousness, i.e., the torching of a vehicle
containing the body of the victim who had been shot multiple times. This conduct indicates a serious danger to
society versus only one circumstance in mitigation of no prior record. The factors in aggravation clearly and
conclusively preponderate.†(Italics
added.)
Bautista argues the italicized
portion of the trial court’s comments suggests the court may have thought
Torres was alive when the vehicle was set on fire. According to Bautista, the trial court therefore
abused its discretion because it imposed an aggravated term because of a fact
this court determined was not proven.
We disagree for two reasons. First, the record makes it clear the trial
court understood the effect of our prior opinion. The trial court began by noting that only
count 4 had been reversed, and the matter was remanded for resentencing on that
count. The probation report recommended
the trial court impose an aggravated term.
Bautista’s counsel admitted he had received a copy of the report and
argued the only issue was whether the term should be imposed concurrently or
consecutively. He urged the trial court
to impose a concurrent term.
The prosecutor argued the trial
court should impose a consecutive term because of the callousness of the
crime.
After the prosecutor finished his
comments, Bautista’s counsel stated he thought the prosecutor had suggested
that Torres was alive when the car was burned.
He pointed out that this court concluded there was insufficient evidence
to support that finding.
The prosecutor agreed there was
insufficient evidence that Torres was alive when the vehicle was burned and
apologized if he had suggested otherwise.
The trial court agreed there was no
evidence that Torres was alive when he was burned, and “that was in a sense the
essence of the Appellate Court inserting 451(d) in lieu of 451(a).†This portion of the record establishes that
the trial court understood it was required to sentence Bautista on the basis
that Torres already was dead when the vehicle was burned.
The second reason we disagree with
Bautista is that the language used by the trial court did not suggest it
thought Torres was alive when the vehicle was burned. The trial court stated the vehicle was burned
while the body of the victim was in the trunk.
If the trial court had believed Torres was alive when the vehicle was
burned, it would have stated that the victim was in the trunk. A body is defined as:
“1.a. The entire material structure and substance of an
organism, esp. of a human being or an animal.
b. The physical part of a person as opposed to the mind or spirit. c. A corpse or carcass.†(Webster’s II New College Dict. (2001) p.
124.)
This definition makes clear that a
body does not refer to a living human being.
Accordingly, the statement that referred to the “body of the victimâ€
clearly acknowledged that Torres was dead when the vehicle was burned. There is no merit to this argument.
Bautista next argues the trial
court’s sentence must be reversed because the trial court erroneously concluded
the crime involved “a great, if not the greatest, form of callousness, i.e.,
the torching of a vehicle containing the body of the victim who had been shot
multiple times.†According to Bautista,
the act of setting a vehicle on fire with a dead body in the trunk is not, as a
matter of law, “a great, if not the greatest, form of callousness.â€
This argument is a futile exercise
in semantics. There is no law that
establishes the “greatest form of callousness.â€
Nor was the trial court attempting to create such law. It is clear from the record that the trial
court found Bautista’s actions to be extremely callous, a conclusion with which
we agree. He beat a man he did not know,
shot and killed him, and finally, in an attempt to eliminate evidence, he
burned the victim’s vehicle while the dead body was in the trunk. His actions showed no regard for human life
or the victim’s family. The trial
court’s comments were proper.
Finally, Bautista points out, and
the People concede, the abstract of judgment for the determinate term is
erroneous in two respects. First, in
item No. 1, the description of the arson conviction states that Bautista was
convicted of “Arson Causing [Great Bodily Injury].†We reversed the great bodily injury finding
in the previous appeal. The description
needs to be corrected to arson of property.
Second, the abstract reflects in
item No. 8 that the total indeterminate term was nine years. This is incorrect. After resentencing, the total prison sentence
was three years. We will remand the
matter to the trial court to correct these two errors.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to
issue a corrected abstract of judgment.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Franson, J.
statutory references are to the Penal Code.
