P. v. Lopez

 

 

 

 

 

 

 

 

 

 

Filed 8/7/13  P. v. Lopez CA4/3

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   JORGE A. LOPEZ,         Defendant and Appellant.

G046933            (Super. Ct. No. 10CF1711)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard F. Toohey, Judge.  Affirmed.

                        Patricia A. Scott, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Laura A. Glennon, Deputy
Attorneys General, for Plaintiff and Respondent.

 

                        Jorge A. Lopez was found
guilty of second degree murder after
he crushed Marcus Nieto’s chest with a concrete block as he lay defenseless on
the ground.  The trial court sentenced
Lopez to 16 years to life in prison.  On
appeal, Lopez maintains the trial court abused its discretion by denying him
probation, finding the case was not “unusual” under Penal Code
section 1203, subdivision (e)(1).href="#_ftn1" name="_ftnref1" title="">[1]  We affirm the judgment.

I

                        Lopez and his girlfriend
of two years, Mercedes Esperanza Garcia Blanco, were homeless and they went
early one morning to an encampment near a Santa Ana
construction site to get some sleep. 
They were “coming down” from having used methamphetamine three days
earlier.  They talked to Ramon Fuentes at
the encampment.  Lopez, Blanco, and
Fuentes obtained methamphetamine and smoked it in Fuentes’s van.  Later, Lopez left Blanco in the encampment to
obtain more methamphetamine.  He returned
several hours later with scratches on his face. 


                        While Lopez and Blanco
were sitting on a mattress, Nieto and another man walked into the
encampment.  Lopez stood up and
confronted them stating, “You guys are backstabbing me.”  Lopez then punched Nieto, who fell to the
ground.  The other man ran away.  Lopez picked up a nearby 16 pound piece of
concrete, lifted it over his head, and dropped it on Nieto.  Lopez picked up and threw the same concrete
block several times, hitting Nieto’s face and chest, while Nieto lay on the
ground.  Eventually, Blanco was able to
pull Lopez away from Nieto, and they left the scene in Fuentes’s van.  Blanco recalled Lopez was “angry and
laughing” at the time.

                        Fuentes drove them to
Lopez’s aunt’s home.  Lopez showered and
washed the blood off his white tennis shoes. 
Blanco asked Lopez why he hit Nieto, but Lopez did not respond.  Lopez later told Blanco she had not “seen
anything yet” and he was used to doing “this.”

                        That evening police
discovered Nieto dead, lying on the ground with a concrete block near his
head.  The police later determined
Nieto’s DNA was on the block.  The police
also searched Lopez’s aunt’s home and recovered the clothing and white tennis
shoes Lopez wore the day of the murder. 
The clothing also contained blood matching Nieto’s DNA.

                        A forensic pathologist
conducting Nieto’s autopsy determined the cause of death was blunt force trauma
and abdominal hemorrhaging due to a ruptured artery.  The pathologist noted Nieto also had a blood
alcohol level of .46, but this level of intoxication was not the immediate
cause of his death.  The href="http://www.sandiegohealthdirectory.com/">pathologist concluded
Nieto’s fatal injuries were consistent with a 16 pound concrete block having
been thrown onto his chest.  On
cross-examination, the pathologist acknowledged literature describing
posttraumatic apnea that may cause death and occurs when there is combination
of head trauma and high alcohol blood levels. 
The pathologist
also agreed a blood alcohol content of .46 percent could be lethal to a normal
person without any other trauma. 

                        For Lopez’s defense, his
counsel presented testimony from Santa Ana
police officer Dean Fulcher, who attended the autopsy.  He confirmed his report did not mention
Nieto’s high blood alcohol level or posttraumatic apnea as a cause of
death.  Fulcher explained the forensic pathologist
did not mention these things, but told Fulcher the cause of death was from the
rupture of blood vessels.  Harry James
Bonnell, the former chief medical examiner for the City of San
Diego, testified on Lopez’s behalf, stating the cause
of death was acute alcohol intoxication. 
Based on Nieto’s eye fluid samples, Bonnell opined Nieto’s blood alcohol
content was greater than .48 percent at the time of his death and such a
significant toxicology result should have been listed as a contributing cause
of his death. 

                        The information charged
Lopez with murder by use of a deadly weapon, but the jury found Lopez guilty of
second degree murder by the use of a dangerous weapon.  (§§ 187, subd. (a); 12022, subd.
(b)(1).)  The probation department
prepared a sentencing report about Lopez’s background, family, and criminal
history.  The probation officer noted
that when asked about the crime, Lopez indicated the trial witnesses had lied,
he and Nieto were drunk that day, and he never intended for things to occur the
way they did.  Nevertheless, Lopez stated
he “felt horrible about what occurred, and he did not know the victim died
until the police talked to him.”  Lopez
“stressed what happened was an accident,” but he believed God put him in
custody to force him to reflect upon his life and “realize what is
important.”  He begged for another chance
and for the court to be “merciful” because his children needed him.  The probation officer opined Lopez was not
remorseful.

                        The probation officer
also reported Lopez had no prior criminal convictions, but he had been arrested
for domestic violence, public
intoxication, and possession of drug paraphernalia.  In addition, while in custody, he assaulted a
fellow inmate.  The probation officer
opined Lopez’s drug and alcohol use might have been one contributing factor, as
it also appeared Lopez had “a propensity towards violence, which [was] another
concern in regard to community safety in this matter.”  As for Lopez’s children, the probation
officer observed Lopez admitted he had not seen his youngest daughter, who was
11 years old, and sadly there was no indication Lopez’s children were a
priority in his life.

                        The probation officer
concluded Lopez was presumptively ineligible for probation because his murder
conviction involved a deadly weapon.  The
officer discussed the factors relevant to granting probation, concluding the
circumstances of the case did not weigh in favor of granting probation:  “[T]he crime is not substantially less
serious than circumstances typically present in other cases, is not less
serious than a prior conviction, the crime was not committed under
circumstances of great provocation or duress, was not committed because of a
mental condition, and [Lopez] is neither youthful nor aged.  [¶] 
[Lopez’s] behavior presents a serious danger to the community, and his
past history is not indicative of a person who would comply with community
supervision if not in custody.  Further,
[Lopez] has an Immigration and Customs Enforcement hold

.
. . which will result in his deportation upon his release from custody, and
render him unavailable for community supervision on a local level.” 

                        Lopez filed a sentencing
brief arguing there were facts showing his was an unusual case, arguing the
murder weapon was simply a chunk of concrete, he was intoxicated and did not
intend for Nieto to die, and he did not have a criminal record.  The prosecutor filed a sentencing brief
stating this was not an unusual case because Lopez showed his violent nature
before, during, and after the attack. 
The prosecutor focused on the fact Lopez bragged about the murder to his
girlfriend, saying, “‘You haven’t seen nothing yet, this is what I’m used to
doing.’”  The prosecutor noted there was
no evidence Lopez committed the crime under circumstances of great duress or
provocation because after hitting Nieto once in the face, he was rendered
unconscious and posed no threat to Lopez. 
The prosecutor concluded probation was not warranted because Lopez’s
“willingness to use violence even when his victim [was] helpless [made] him a
danger to society.”

                        The trial court agreed
and sentenced Lopez to 16 years to life in prison.  In making its ruling, the court explained,
“[Lopez] is not eligible for probation unless the court finds that this is an
unusual case [and] the interest of justice would best be served by granting
probation.  [¶]  And the court does not find that that presumption
[against probation] has been rebutted, this limitation is not substantially
less serious  [¶]  This concrete block that [Lopez] used, he
used to crush into the chest of this defenseless man on the ground, [is an]
extremely violent act.  There’s no way
the court could, under any circumstances in good faith grant probation in the
case.  [¶]  I might note that [Lopez] is not legally in
the country.  [¶]  [It is] documented that he has substantial
use of alcohol and methamphetamine which makes him a danger to society.  He[] talks about his children needing
him.  He’s got . . . five children.  And it’s clear that [due to] his
methamphetamine use and alcohol use [he] gave them limited support.  His father and Martha Gutierrez basically are
victims of this matter also.”

II

                        Lopez argues the trial
court abused its discretion in denying his request for probation.  He asserts the trial court minimized or
ignored the factors that strongly supported consideration of probation in the
interests of justice and his was an “unusual” case within the meaning of
section 1203 and California Rules of Court, rule 4.413(c) (hereafter, rule
4.413).  Specifically, Lopez contends his
intoxication at the time of the crime, the spontaneous nature of the murder,
his lack of criminal convictions, and his remorse demonstrated he met the
criteria for a grant of probation.  He
concludes, “it appears the trial court acted arbitrarily in finding only that
[he] committed an ‘extremely violent act’ and in commenting on his substance
abuse as a factor which ‘makes him a danger to society’ without weighing in the
many positives about [him] personally, and the attenuating circumstances of the
offense . . . .”  Based on our review of
the record, it cannot be said the court abused its discretion.

                        Section 1203,
subdivision (e), provides, “Except in unusual cases where the interests of
justice would best be served if the person is granted probation, probation
shall not be granted to any of the
following persons:  [¶]  (1) . . . [A]ny person who has been convicted
of . . . murder, attempt to commit murder, . . . and who was armed with the
weapon at either of those times.” 
(Italics added.) 

                        Rule 4.413(b) explains,
“If the defendant comes under a statutory provision prohibiting probation
‘except in unusual cases where the interests of justice would best be served,’
or a substantially equivalent provision, the court should apply the criteria in


(c)
to evaluate whether the statutory limitation or probation is overcome:  and if it is, the court should then apply the
criteria in rule 4.414 to decide whether to grant probation.”  In other words, the court’s first step is to
evaluate whether the case is sufficiently “unusual” to overcome the statutory
limitation on probation.  Only if the
defendant is deemed eligible for probation should the court consider the
criteria listed in rule 4.414 regarding the decision to grant or deny
probation.

                        To assist the trial
court, rule 4.413(c) is divided into two subsections: 

(1)
“Facts relating to basis for limitation on probation,” and (2) “Facts limiting
defendant’s culpability.”  Rule 4.413(c)(1)
states it may be an “unusual case” when the facts serving as “the basis for the
statutory limitation on probation, although technically present, [are] not
fully applicable to the case. . . .” 
Rule 4.413(c)(1) provides one lengthy example:  Probation may be appropriate when, “(A) The
fact or circumstance giving rise to the limitation on probation is, in this
case, substantially less serious than the circumstances typically present in
other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes
or crimes of violence; and [¶] (b)
The current offense is less serious than a prior felony conviction that is the
cause of the limitation on probation, and
the defendant has been free from incarceration and serious violation of the law
for a substantial time before the current offense.”  (Italics added.)  In short, when a defendant does not have any
prior convictions, this provision would apply if the court determines his or
her crime was “substantially less serious” than other murders committed with
deadly weapons. 

                        Rule 4.413(c)(2), “Facts
limiting defendant’s culpability” provides the court may also consider facts or
circumstances that did not amount to a defense but reduce “the defendant’s
culpability for the offense . . . .”  It
lists three possible circumstances.  The
first one concerns defendants committing crimes “under circumstances of great
provocation, coercion, or duress . . . .” 
(Rule 4.413(c)(2)(A).)  This
subdivision is inapplicable based on the facts of this case and Lopez’s defense
the killing was accidental. 

                        The second category
relates to crimes “committed because of a mental condition not amounting to a
defense, and there is a high likelihood that the defendant would respond
favorably to mental health care and treatment that would be required as a
condition of probation[.]”  (Rule
4.413(c)(2)(B).)  The third factor
limiting a defendant’s culpability is his age: 
“The defendant is youthful or aged, and has no significant record of prior
criminal offenses.”  (Rule
4.413(c)(2)(C).) 

                        The trial court’s
findings as to whether there are unusual circumstances, as with the court’s
decision to grant or deny probation, is reviewed for an abuse of
discretion.  (People v. Superior Court (Du)
(1992) 5 Cal.App.4th 822, 831 (Du).)  “‘An order denying probation will not be
reversed in the absence of a clear abuse of discretion.  [Citation.] 
In reviewing the matter on appeal, a trial court is presumed to have
acted to achieve legitimate sentencing objectives in the absence of a clear
showing the sentencing decision was irrational or arbitrary.  [Citations.]’ 
[Citation.]”  (>People v. Ferguson (2011) 194
Cal.App.4th 1070, 1091.)

                        In his sentencing brief,
Lopez argued there were facts showing his was an unusual case because the crime
was “substantially less serious than the circumstances typically present in
other cases involving the same probation limitation . . . .”  (Rule 4.413(c)(1)(A).)  He focused on the nature of the murder
weapon, arguing it was merely a chunk of concrete that was not brought to the
crime scene and no other weapons were used. 
He also argued, “The blows to the face and body (not the abdomen) were
not sufficient to cause death.”  In
making these statements, we assume Lopez sought to mitigate the circumstances
of the murder based on the fact his weapon was unsophisticated and capable of
also causing non life-threatening injuries. 


                        On appeal, Lopez expands
his argument to include several factors set forth in rule 4.413.  As in his sentencing brief, Lopez begins by
asserting the murder was less serious than other murders.  (Rule 4.413(c)(1)(A).)  He offers the following explanation:  The murder is less serious than others
because he did not intend to kill Nieto and he was very remorseful for his
actions.  Moreover, Nieto’s inebriation
was a substantial contributor to his death and there was evidence Lopez did not
plan to kill Nieto because he did not come “‘armed’” in the usual sense.”  He adds, “[T]he presence of the concrete
block was nothing but fortuitous, an object of chance.”

                        However, we cannot
reweigh the evidence.  Our task is to
determine if the court abused its discretion in ruling the circumstances of the
murder were not substantially less serious than other murders.  The trial court stated, “This concrete block
that [Lopez] used, he used to crush the chest of this defenseless man on the
ground, [is an] extremely violent act. 
There’s no way the court could, under any circumstances in good faith
grant probation in the case.” 

                        We conclude, the court’s
ruling is amply supported by the record. 
Lopez repeatedly threw a heavy piece of concrete onto a defenseless
man’s head and chest, killing him.  He
did not drop a rock one time, accidently crushing the victim’s chest.  We agree with the trial court’s assessment
the murder was particularly vicious and brutal. 
Immediately afterwards, Lopez laughed and later boasted about his
aggressive behavior.  Although the
concrete block may have been a weapon of chance, Lopez’s conduct during and
after the murder amply support he will continue to be a danger to society if
not incarcerated.  

                        Lopez faults the court
for focusing on the violent nature of the murder and his substance abuse rather
than other positive attributes relating to the crime that were in his
favor.  “‘A trial court may minimize or
even entirely disregard mitigating factors without stating its reasons.’  [Citation.] 
Further, unless the record affirmatively reflects otherwise, the trial
court will be deemed to have considered the relevant criteria, such as
mitigating circumstances, enumerated in the sentencing rules.  [Citation.]” 
(People v. Zamora (1991) 230
Cal.App.3d 1627, 1637.)  It was
reasonable for the trial court to downplay Lopez’s statements of remorse, lack
of criminal history, lack of intent to kill, and the victim’s levels of
intoxication considering the undisputed fact Lopez essentially stoned to death
an unconscious man for no apparent reason. 
In denying Lopez probation, the trial court clearly stated its reasons,
properly focusing on the seriousness of his crime and reasonably concluding
Lopez was a danger to others.  “We will
not interfere with the trial court’s exercise of discretion ‘when it has
considered all facts bearing on the offense and the defendant to be
sentenced.’  [Citation .]”  (People
v. Downey (2000)

82
Cal.App.4th 899, 910.)

                        Lopez relies on >Du, supra, 5 Cal.App.4th 822, where a
woman convicted of voluntary manslaughter with a firearm received probation,
and argues the facts of his conviction are much less egregious.  But the facts of Du are readily distinguishable. 
Further, exercise of discretion by its very nature suggests that
different courts may reasonably arrive at different decisions, even on the same
facts.  (People v. Garcia (1995) 32 Cal.App.4th 1756, 1771.)  It cannot be said the trial court abused its
discretion in declining to grant Lopez a probationary sentence.

                        Alternatively Lopez
cites to rule 4.413(c)(1)(B), asserting the court should have relied on this
factor and found him eligible for probation. 
He argues this subdivision of the rule is relevant anytime the current
offense is less serious than a prior
felony offense and, therefore, should also apply when a defendant has no prior
felony offenses.  He suggests the
subdivision applies to those who are not “habitually violent persons.”  He has misconstrued the meaning of rule
4.413(c)(1)(B).  It provides the court
may consider probation when the current offense is less serious than a prior
felony conviction “that is the cause
of the limitation on probation.” 
(Italics added.)  Accordingly,
this subdivision only applies when the probation limitation is due to the
nature of a prior conviction.  In other
words, it permits the court considering minor offenses to consider probation >despite a defendant’s serious criminal
history.  The provision has no
application to defendants lacking a criminal history.  In the case before us, it is Lopez’s >current offense of murder with a deadly
weapon that is the cause of the limitation on probation, not a prior
offense.  The provision is inapt.

 

 

                        On appeal, Lopez also
refers to rule 4.413(c)(2)(B), permitting probation when the offense was
committed due to a “mental condition not amounting to a defense” and requires
the defendant would “respond favorably to mental health care and
treatment.”  Without providing supporting
authority, Lopez asserts that being under the influence of alcohol and
methamphetamine qualifies as a mental condition under

rule
4.413(c)(2)(B).  We disagree.  Certainly intoxication and drug usage can
result in a temporarily altered or diminished mental state.  However, there is no legal or logical basis
to treat voluntary drug/alcohol usage the same as a diagnosed mental health
condition, such as depression or schizophrenia. 
A drug or alcohol rehabilitation program encompasses much more than
mental health care and treatment.  We
conclude this subdivision is also inapt because there is no evidence Lopez was
mentally ill or required mental health care.

                        Finally, Lopez asserts
probation was warranted because he was “youthful” and had no significant record
of prior criminal offenses and therefore fell under the preview of rule
4.413(c)(2)(C).  That subdivision of the
rule authorizes the trial court to consider probation in the unusual case
involving a “youthful” or “aged” novice offender.  Although not defined, the terms “youthful”
and “aged” clearly contemplate the two ends of the spectrum of adulthood.  On the one end is the “20-something,”
unworldly offender who may have naively committed a crime or is a good
candidate for rehabilitation.  On the
other end of the spectrum, is a first time offender nearing the end of his or
her life, and consequently is not likely to have the means or opportunity to
reoffend.  Thirty-five-year-old Lopez
falls somewhere in the middle of the spectrum, and for this reason, we conclude
the subdivision was not intended to apply to his circumstances.  The court did not abuse its discretion by
failing to consider application of rule 4.413(c)(2)(C). 

 

 

 

III

                        The judgment is
affirmed.

 

 

                                                                                   

                                                                                    O’LEARY,
P. J.

 

WE CONCUR:

 

 

 

ARONSON, J.

 

 

 

IKOLA, J.