P. v. Cortes

















Filed 3/25/13 P. v. Cortes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT


>

THE PEOPLE, Plaintiff and Respondent, v. ROMAUALDO AGUILAR CORTES, Defendant and Appellant.

B239895 (Los Angeles County Super. Ct. No. BA027770)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Laura F.
Priver, Judge. Affirmed as modified.



Johanna R.
Shargel, under appointment by the Court of Appeal, for Defendant and Appellant.



Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Allison
H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.



* * *
* * * * *





We affirm appellant Romaualdo
Aguilar Cortes’s conviction for voluntary
manslaughter and modify his conduct credits. On appeal, appellant argues the information
charging him with murder should have been dismissed because he previously was
“convicted of murder in a Mexican court, and served time.” Appellant’s argument lacks merit because
insufficient evidence supports his statement that he suffered a conviction in Mexico
based on the same conduct underlying his California
conviction. Appellant failed to provide
a judgment or minute order indicating he was convicted of any offense in Mexico
and therefore failed to satisfy his burden of demonstrating a foreign
conviction. We affirm.

>FACTS AND PROCEDURE

Evidence at
appellant’s preliminary hearing showed that on September 29, 1990, appellant, his brother, and Jorge
Silverio were together in Los Angeles. Silverio insulted appellant and may have put
appellant in a headlock. Appellant
stabbed Silverio in the chest with a knife.
The next day, appellant fled to Mexico. Silverio died of one stab wound to the
chest.

On May 12, 2011, back in Los
Angeles, appellant was charged with one count of
murder. The People alleged appellant
killed Silverio unlawfully and with malice aforethought. Appellant moved to dismiss the case because,
according to him, under Penal Code former section 656, he could not be
prosecuted for an act for which he previously had been convicted in another
country. In 1990, section 656 provided: “Whenever on the trial of an accused person
it appears that upon a criminal prosecution under the laws of another state,
government, or country, founded upon the act or omission in respect to which he
is on trial, he has been acquitted or convicted, it is a sufficient defense.”href="#_ftn1" name="_ftnref1" title="">>[1]

Our record
demonstrates a penal action against appellant was started in Mexico
and transferred to a juvenile court there.
An investigation was conducted into Silverio’s death and appellant was
“presumed” responsible. The criminal
complaint concerned appellant’s “probable responsibility in the commission of
the crime of homicide.” (Capitalization
omitted.) Appellant served “a year of
corrective treatment” in Mexico. He “successfully completed the treatment
imposed.”

The
court denied appellant’s motion to dismiss.
The People amended the information to add a count of voluntary
manslaughter. Appellant then pled no
contest to voluntary manslaughter.
Appellant was sentenced to 11 years in state prison, and as subsequently
corrected was awarded 1,449 total credits, which included 1 year 3 months
appellant claimed to have served for murder or homicide in Mexico. The court issued a certificate of probable
cause for the instant appeal.

>DISCUSSION

Appellant
argues that under Penal Code former section 656, he cannot be punished in California
because he was “convicted of murder in a Mexican court” and served time there
for that crime. Section 656 provides
“‘greater double jeopardy protection than the United States Supreme court has
determined to be available under the Fifth Amendment of the United States
Constitution.’ [Citation.]” (People
v. Homick (2012) 55 Cal.4th 816, 838 (Homick).) The double jeopardy clause protects “against
the imposition of multiple criminal punishments
for the same offense” in successive proceedings. (Hudson
v. United States (1997) 522 U.S. 93, 99.)
The current version of section 656 does not include a defense for
convictions suffered in foreign countries, and appellant argues the former
version of that statute applies, which we assume to be true for purposes of
this appeal only.

“[Penal
Code] section 656 applies when the physical
conduct required for the California
charges has previously been the subject of an href="http://www.mcmillanlaw.com/">acquittal or conviction in another
jurisdiction, regardless of whether the two charges have different requirements
as to intent or other nonact elements.”
(Homick, supra, 55 Cal.4th at p. 840.)
Section 656 does not apply if “‘the offense committed is not the same
act but involves [conduct] not present in the prior prosecution.’ [Citation.]”
(Homick, at p. 843.) Applying these principles, our Supreme Court
has concluded that the lying-in-wait special circumstance requires proof of
conduct additional to that required in a federal statute under which the
defendant was convicted of traveling between states to commit a murder for
hire, which resulted in death. (>Id. at p. 844.) Our high court also held an acquittal for
assault on a federal officer barred state prosecution for assault but did not
bar state prosecution for robbery. (People
v. Belcher (1974) 11 Cal.3d 91, 100 (Belcher).) In contrast to the assault, the robbery
prosecution required proof of an additional element.

In >Belcher, the defendant “presented to the
court certified copies of the federal indictment and of the judgment of
acquittal.” (Belcher, supra, 11 Cal.3d at p. 94.) Based on these certified documents and
tracking the language of section 656, the court found “no question
that, . . . defendant ‘has been acquitted’ or the acquittal came
‘upon a criminal prosecution under the laws of another . . . government,’
namely that of the United States.” (>Belcher, at p. 98.) Thus, in Belcher,
the defendant satisfied his burden of demonstrating that in federal court he
had been acquitted of assaulting a federal officer.

In
contrast, our record is insufficient to determine whether the same conduct
underlies appellant’s California murder charge and the claimed conviction in
Mexico. There is no document identifying
charges against appellant. There is no
document showing appellant was convicted of a crime or pled guilty to any
crime. No official document identifies
the elements of the crime for which appellant was allegedly convicted. There is no minute order or judgment. Although there is evidence appellant may have
been charged with homicide during a fight, no document shows he was convicted
of that offense. Because appellant
presented no substantial evidence that he suffered a foreign conviction
“founded upon the act or omission” underlying his California murder charge,
appellant fails to carry his burden of demonstrating a foreign conviction on
the conduct underlying his California charge.
Penal Code former section 656, assuming it is applicable, provides
appellant no defense.href="#_ftn2"
name="_ftnref2" title="">>[2]

Finally,
the parties dispute whether appellant was entitled to custody credits for the
time he received “corrective treatment” in Mexico. (People
v. Cartwright (1995) 39 Cal.App.4th 1123, 1140 [custody credits may be
amended at any time].) Appellant argues
that he was entitled to such treatment because the double jeopardy clause
requires that “criminal punishment be authorized ‘only once “for the same
offense”’” and that principle “applies equally to juveniles and adults.” Appellant’s argument lacks merit because he
has not shown he served time “for the same offense.” As noted, appellant failed to carry his
burden of demonstrating he was convicted in Mexico of killing Silverio. Therefore, the credits must be modified to
reflect 522 days of custody credit, plus 260 days of conduct credit.href="#_ftn3" name="_ftnref3" title="">>[3] The corrected presentence credit is 782
days.

DISPOSITION

The judgment is modified to reflect
782 days of presentence credit and in all other respects is affirmed.



FLIER,
J.



We concur:



BIGELOW,
P. J. RUBIN,
J.

People v. Cortes

B239895



RUBIN, J., Concurring



I concur in
the majority opinion, which I have signed, but write separately to express
concern that the state of the record may have forced us to avoid the one issue
in this case that was apparently tried in the trial court, an issue that
involves significant constitutional and statutory principles of double jeopardy
and retroactivity: Does former or present
Penal Code section 656 apply to this case?
The importance of this question is apparent because under the current
version of the statute – the one that the trial court appears to have applied –
the Mexican proceedings result only in additional credits for the time served
in Mexican custody. (See Pen. Code, §
656.5.) On the other hand, if the former
version of the statute is applicable, then the California conviction may be
invalid.href="#_ftn4" name="_ftnref4" title="">>[4]

We hold the
record is unclear as to whether or not the actual charges arising out of the
California homicide were fully adjudicated in Mexico. Neither the trial court nor the District
Attorney seemed to question that there was a juvenile adjudication in Mexico
and that it was based on the California murder.
The only question presented in the trial court was which version of the
statute applied. The District Attorney
was successful in persuading the trial court that the current statute governed
and that the Mexico adjudication had only limited effect under Penal Code section
656.5. Tellingly, the District Attorney
affirmatively asserted in the trial court that defendant was entitled to credit
in the California case for the time served in Mexican custody. Such custody credits were awarded by the
trial court under section 656.5 which states:

“Any person
convicted of a crime based upon an act or omission for which he or she has been
acquitted or convicted in another country shall be entitled to credit for any
actual time served in custody in a penal institution in that country for the
crime, and for any additional time credits that would have actually been
awarded had the person been incarcerated in California.”

By express
words, Penal Code section 656.5 does not apply unless the California crime and
the foreign jurisdiction crime are the same.

Nevertheless,
I join in the majority because we are shackled in our analysis of the record
because it contains only a small portion of the Mexico proceedings translated
in English. I surmise that if the entire
record of the Mexico proceedings had been translated, there would be no doubt
that the adjudication in Mexico qualified under one of either Penal Code former
section 656 or present section 656.5, depending on the resolution of that
issue. Certainly, everyone in the trial
court assumed that one of the two statutes governed. Instead, we conclude that neither section
applies and reverse the award of credits under section 656.5 because of a
deficient record.

But I
reluctantly concede that my surmise is just that, surmise, and the record in
its current form does not allow us to go further. It may be that if the case returns to us in
the form of a habeas petition with a fully translated record of what took place
in Mexico or other admissible evidence,
we will be able to address the more serious constitutional and statutory issues
that elude us today.



RUBIN,
J.