P. v. Nogueda
Filed 2/14/13 P. v. Nogueda CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Yolo)
THE PEOPLE,
Plaintiff and Respondent,
v.
ALAN ALFONSO NOGUEDA,
Defendant and Appellant.
C067538
(Super. Ct. No. 10-3290)
The trial
court sentenced defendant Alan Nogueda to a prison term of 26 years and 8
months after a jury convicted him of four counts of
one count of corporal injury to the parent of his child, one count of false
imprisonment, two counts of making criminal
threats, one count of endangering the health of a child, and two other
misdemeanor violations. The jury found
true the allegations that defendant willfully and unlawfully personally used a
firearm as to all counts on which he was convicted, except two.
The victims
were defendant’s four- and one-half-month-old daughter, his daughter’s mother,
and his own mother.
Defendant
argues there was insufficient evidence
that he had the present ability to commit an assault because there was no evidence
the gun was loaded. He argues the trial
court should have sua sponte instructed that there was no present ability to
commit an assault if the gun was unloaded, and that his trial counsel was
ineffective for not requesting such an instruction.
He claims
he received ineffective assistance of trial counsel because his counsel failed
to object to certain testimony. He also
claims two of his prison sentences should have been stayed pursuant to Penal
Code section 654.
title="">[1]
We shall
direct the trial court to stay two of defendant’s prison sentences pursuant to
section 654, but shall otherwise affirm the judgment. Defendant’s aggregate prison term will remain
unchanged.
FACTUAL
AND PROCEDURAL BACKGROUND
Lorena
Aramburo was the mother of defendant’s daughter. On the date of the incident in question, July 2, 2010, Aramburo and defendant
were no longer in a relationship, because Aramburo ended the relationship when
defendant went to jail. However, Laura
Rodriguez, defendant’s mother, helped Aramburo watch the baby.
On July 2, 2010, the baby was staying
with Rodriguez, and Aramburo went there to pick her up around 8:00 p.m.
Rodriguez’s other son, Marcelino, was also at Rodriguez’s house. Defendant arrived at the house, and Aramburo
got up to leave. She testified that she
saw defendant do something with his hands, but did not see anything in his
hands. At trial, she acknowledged that
she said defendant came in carrying a gun in her earlier testimony at the
that sounded like he was loading a gun.
She testified she thought he was doing it just to scare her, and that
the gun was just a toy.
Defendant
said he wanted to talk to Aramburo. She
did not want to talk to him, so she picked up the baby and started to walk out
the door. Defendant followed her as she
walked to her truck. He grabbed the
baby’s car seat, saying all the while that he wanted to talk to her. They began arguing. He accused her of going out with someone
else.
Aramburo
acknowledged that she had stated at the preliminary hearing that defendant
pulled a gun out, but testified at trial she could not say for sure it was a
gun. She testified that she was sitting
in her truck when defendant began hitting her.
She testified he hit her repeatedly with his fists and with the gun, and
held the gun against the side of her head and told her he was going to kill
her. She no longer thought the gun was a
toy. He bit her on her nose, cheek, lip,
and ear.
Aramburo
slid out of the truck onto the ground, hoping defendant would quit hitting
her. He did not stop, however. A neighbor arrived and pleaded with him to
stop and calm down. Defendant did not
stop, but went on hitting Aramburo, and began kicking her. Defendant’s mother and brother, Marcelino,
came out to the truck. They tried to
stop defendant by grabbing and pulling at him, but he went on as if he was
crazy and the only thing he wanted to do was hurt Aramburo.
Finally,
defendant calmed down. Then Aramburo’s
cell phone rang. Defendant answered
it. He started arguing with the person
on the phone, and said “[s]omething about Sureños or something like that.†The person on the phone was an acquaintance
of Aramburo’s brother. He was calling
because he wanted to talk to Aramburo’s brother. Defendant threw down the phone and said he
was going to kill Aramburo, called her a bitch, then hit her again.
Aramburo
tried to run away from defendant, but he grabbed her, threw her on the ground,
and tried to hit her again. His mother
intervened, but he continued to hit and kick Aramburo. Aramburo was able to get near the neighbors
for protection.
Defendant
then grabbed the baby. His mother
implored him to think of the baby. He
said, “Well, what’s the big deal? The
kid isn’t even mine.†At this point, one
of the neighbor’s took Aramburo into her trailer home.
Officer
Jerry Watson responded to the scene and interviewed Aramburo. Aramburo was crying and hysterical. She said that defendant held a gun to her
head. She also told him that defendant
pointed a gun at both Rodriguez and the baby.
Officer Renaldo Monterrosa interviewed Rodriguez. Rodriguez told him that defendant had
assaulted her when she tried to intervene.
Rodriguez told Monterrosa that defendant threatened to kill both of
them. He also held the gun while holding
the baby, and said he was going to kill it because it was not his. He pointed the gun at Rodriguez at one point
as well, and said that if anyone tried to take away the baby, he would kill
them.
Officer
Jason Fortier also took a statement from Rodriguez. Rodriguez informed him she had seen defendant
with a chrome handgun. Fortier searched
a nearby gas station because Rodriguez said she saw defendant enter the parking
lot of the station and walk toward the rear.
Fortier found a gun on the lifting rail of a trash dumpster. The gun was not loaded and the magazine was
unloaded. Fortier searched the area, but
did not find any ammunition.
Aramburo
admitted talking to defendant’s mother about the case, and that Rodriguez told
her defendant would get 48 years in jail because of the gun. Aramburo admitted she still loved defendant
and did not want anything bad to happen.
Rodriguez
admitted talking to Aramburo about the case and telling her to testify that
there was not a gun involved in the incident.
Rodriguez testified she told Aramburo this because at the moment
Aramburo claimed defendant had hit her with a gun, Rodriguez had not seen any
gun.
Defendant
was charged with assault with a semiautomatic firearm (§ 245, subd. (b))
against Aramburo (counts 1 and 2 for aiming the gun and hitting with the gun,
respectively), against Rodriguez (count 7), and against the baby (count
9). As to each count of assault with a
semiautomatic firearm, it was alleged that defendant willfully and unlawfully
personally used a firearm pursuant to section 12022.5, subdivision (a).
Count 3
charged defendant with false imprisonment with force and violence against
Aramburo (§§ 236, 237, subd. (a)) and alleged a section 12022.5, subdivision
(a), enhancement.
Count 4
charged defendant with corporal injury to the parent of his child (§ 273.5,
subd. (a)), and also alleged a section 12022.5, subdivision (a), enhancement.
Counts 5,
6, and 8 charged defendant with making threats to commit a crime resulting in
death or great bodily injury (§ 422) against Aramburo (counts 5 and 6) and
Rodriguez (count 8). The information
alleged section 12022.5, subdivision (a), enhancements to these charges.
Count 10
alleged that defendant abused or endangered the health of a child. (§ 273a, subd. (a).) The information alleged a section 12022.5,
subdivision (a), enhancement to this charge.
Counts 11 and 12 alleged misdemeanor violations not pertinent to this
appeal.
With the
exception of the charge that defendant threatened to commit a crime resulting
in death or great bodily injury to his mother, Rodriguez, the jury convicted
defendant of all felony charges. The
jury found the section 12022.5, subdivision (a), enhancement true as to all
counts upon which defendant was convicted, except counts 3 (false imprisonment)
and 6 (threats to commit a crime resulting in death or great bodily injury to
Aramburo after her cell phone rang).
The trial
court sentenced defendant to a total prison term of 26 years 8 months.
DISCUSSION
I
Present Ability to Commit Assault
“An assault
is an unlawful attempt, coupled with a present ability, to commit a violent
injury on the person of another.†(§
240.) Pointing an unloaded gun without
the threat or effort to use the gun as a bludgeon is not an assault because
there is no present ability to commit violent injury. (People
v. Bekele (1995) 33 Cal.App.4th 1457, 1463, disapproved of on another point
in People v. Rodriguez (1999) 20
Cal.4th 1, 14.)
Defendant
makes three arguments relating to the requirement that he have a present
ability to commit an assault with a firearm, as required in counts 1, 7, and 9.
(1) there was insufficient evidence to show the gun was loaded, (2) the
trial court erred by not instructing the jury that an unloaded gun could not
support a finding of present ability, and (3) that his trial counsel was
ineffective for not requesting such an instruction be given the jury and for
not arguing that he had no present ability because the gun was not loaded.
A.
In
determining whether the evidence was sufficient to support a conviction, we
review “ ‘ “the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find
the defendant guilty beyond a reasonable doubt.†’ †(People
v. Valdez (2004) 32 Cal.4th 73, 104.)
We presume the existence of every fact that could reasonably be deduced
from the evidence. (People v. Lee (1999) 20 Cal.4th 47, 58.)
Defendant
argues there was no evidence the gun was loaded. Not so.
Even though the gun retrieved by police sometime after the incident was
not loaded, the jury could have drawn an inference that the gun was loaded from
Aramburo’s description of the sound she recalled defendant making when he first
entered his mother’s home. She said it
sounded like he was loading a gun.
Also, a
defendant’s own words and conduct may support an inference that the weapon was
loaded. (People v. Rodriguez (1999) 20 Cal.4th 1, 13.) Thus, a defendant’s statement “ ‘I have
got you now,’ †and “halt or ‘I’ll shoot,’ †while pointing a gun may
constitute sufficient evidence to warrant an inference that the gun was
loaded. (Ibid.) Here, defendant held
the gun to Aramburo’s head and told her he was going to kill her. As the jury could have reasonably inferred
from defendant’s words and actions that the gun was loaded, there was
sufficient evidence to support the judgment.
B.
The trial
court gave the following instruction on assault with a semiautomatic firearm:
“In
Counts 1, 2, 7 and 9, Mr. Nogueda is charged with assault with a semiautomatic
firearm in violation of Penal Code Section 245.
To prove him guilty of this crime, the People must prove . . .
“. . .
that the defendant did an act with a semiautomatic firearm that by its nature
would directly and probably result in the application of force to a person;
two, the defendant did that act willfully; three, when the defendant acted, he
was aware of facts that would lead a reasonable person to realize that his act
by its nature would directly and probably result in the application of force to
someone; and, four, when he acted, he had a present ability to apply force with
a semiautomatic firearm.â€
Defendant
argues the trial court had a sua sponte duty to instruct the jury that if there
was no evidence the gun was loaded or was to be used as a bludgeon, then there
was no present ability to apply force with the weapon.
However,
the trial court had no obligation to give such an instruction absent a request
from counsel, and no such request was made.
Instructions that relate particular facts to a legal issue in the case
are required to be given upon request, but are not required to be given sua
sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Hence, there was no error.
C.
Defendant
argues his trial counsel was ineffective for failing to request a pinpoint
instruction that present ability required a loaded gun or a threat to use the
gun as a bludgeon. Defendant argues
there was no tactical reason not to ask for the instruction or to argue that
the gun was not loaded, and that it is reasonably probable he would have been
acquitted on counts 1, 7, and 9 if his counsel had done either.
It is
defendant’s burden to prove that his counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms, and
that there is a reasonable probability the result would have been different but
for counsel’s errors. (
519-520.) We look to see if the record
contains any explanation for the challenged actions. If the record sheds no light on why counsel
acted or failed to act, the claimed error will be rejected unless counsel was
asked to provide an explanation and did not, or there simply could be no satisfactory
explanation. (Id. at p. 520.) However, we
will not second-guess trial counsel’s reasonable tactical decisions. (Ibid.) Moreover, even debatable trial tactics do not
constitute ineffective assistance of counsel.
(People v. Weaver (2001) 26
Cal.4th 876, 928.) Effective assistance
is not perfect assistance.
The defense
theory was that while defendant may have been carrying a concealed gun on his
person, he never used the gun to assault or threaten anyone. Defense counsel may have believed this to be
the best argument, since there was some evidence the gun was loaded, as stated
previously. Defense counsel may have
reasonably concluded that defendant’s position (i.e., that he never used the
gun) would be made weaker by arguing that if
he used the gun, it was unloaded, rendering him not presently able to commit an
assault. Trial counsel may have
reasonably believed that the major thrust of the defense was to avoid a finding
that a gun was used at all, and, if successful, avoid all of the assault
charges, rather than just three of the assault charges, and avoid all of the
weapons enhancements. This is the type
of tactical decision we will not second-guess.
II
Ineffective Assistance of Counsel Claims
Defendant
makes two additional ineffective assistance of counsel claims. He claims his trial counsel failed to object
to prejudicial testimony and failed to secure a ruling that he should not be
shackled during trial. We find no
ineffective assistance.
A.
Defendant
claims he received ineffective assistance because his trial counsel failed to
object to the following testimony:
(1) that defendant had been in
jail previously, (2) that Rodriguez previously had called police to report
defendant, and (3) that Aramburo heard defendant mention Sureños on the telephone.
As
previously indicated, we do not second-guess reasonable tactical decisions, and
the decision whether to object “is a matter of trial tactics as to which we
will not exercise judicial hindsight.†(
520.)
The defense
theory, that defendant beat up Aramburo, but did not use a gun on her in any
fashion, depended on the jury believing that defendant was admitting his only
culpability and had nothing further to
hide, as demonstrated by his concession that he beat Aramburo. Had defense counsel objected whenever
something about defendant’s criminal past been mentioned by a witness, this
defense would have been compromised.
Instead, defendant’s trial counsel tried to neutralize the evidence of
defendant’s past incarceration by getting Aramburo to admit that defendant was
not in jail, but in juvenile hall. The
decision to neutralize the testimony rather than to object was a reasonable
tactical choice.
As for
Rodriguez’s testimony that she had called the police before to turn in
defendant, defense counsel may have reasonably believed that such evidence
would boost Rodriguez’s credibility because it showed she was willing to admit
when her son, defendant, had done something wrong. If she could be relied upon to turn him in
before when he committed a wrong, she could be relied upon now when she
insisted he never had a gun. This was a
reasonable tactical decision.
It was also
a reasonable tactical decision not to object to Aramburo’s testimony that
defendant mentioned something about Sureños when he answered her phone. Counsel reasonably could have believed the
evidence was less harmful if it was not emphasized by an objection, which may
have implied the defense was trying to hide a gang connection. There was no further mention of the word, and
no evidence defendant was associated with a gang. Counsel’s decision not to object did not
amount to ineffective assistance.
B.
Defense
counsel made an in limine motion to preclude defendant from being shackled or
having a leg brace or stun belt during the trial. The trial court would not rule on the motion
because there was no declaration in support of the motion showing a likelihood
of defendant being shackled during trial.
Defense counsel stated she would supplement the motion “next time.†There is no further motion or declaration
appearing in the record. There is no
evidence in the record that defendant was shackled or restrained in court. However, we may infer the defendant was
restrained because of the jury instruction given.
The trial
court gave the following instruction:
“The
fact that physical restraints have been placed on the defendant is not
evidence. . . . [A]nd Mr. Nogueda being in custody is not evidence of anything
pertaining to any of the charges in this case.
And you must completely disregard this circumstance. Do not speculate about any reason. It cannot pertain in any way to your decision
on the issues in the case. Don’t
consider it for any purpose. Don’t even
discuss it during your deliberations.â€
Defendant
now claims his trial counsel rendered ineffective assistance when she did not
obtain a ruling on her in limine motion to prevent him from being physically
restrained in court.
As
previously stated, if the record on appeal sheds no light on why counsel acted
or failed to act in a certain manner, a claim on appeal of ineffective
assistance of counsel will be rejected unless counsel was asked for an
explanation and failed to give one, or there simply could be no satisfactory
explanation. (People v. Gray (2005) 37 Cal.4th 168, 207.) Here, defense counsel may not have insisted
on a ruling against restraints for the simple reason that defendant was not
physically restrained in court. The
record does not show there were any restraints placed on defendant during
trial. Defendant has not shown his
counsel was ineffective.
name="_ftnref3" title="">[3]
III
Section 654
Defendant
was convicted in count 2 of assault with a semiautomatic firearm used as a
bludgeon to hit Aramburo in the head and face.
In count 3 he was convicted of false imprisonment based on Aramburo’s
testimony that defendant held her hands across her chest with one hand while he
hit her in the face with the gun in the other hand. The trial court sentenced defendant to a
two-year term for the assault, and a concurrent two-year term for the false
imprisonment. Defendant now argues the
trial court should have stayed the sentence on count 3 instead of running it
concurrently, because the two counts were based on a course of conduct that was
incident to a single objective. The
People concede that count 3 was committed to facilitate count 2. A stay of the sentence in count 3 will not
affect the aggregate prison term. We
accept the concession.
Defendant
further argues the concurrent sentence in count 5 should have been stayed. Count 5, criminal threat, was based on
defendant threatening to kill Aramburo when he pointed the gun at her. Count 1, assault with a semiautomatic
firearm, was also based on defendant’s conduct in holding the weapon to
Aramburo’s head. The People concede
count 5 should be stayed. Again, the
stay will not affect the aggregate prison term.
We accept the concession.
DISPOSITION
The trial
court is directed to modify the abstract of judgment to state that the two-year
concurrent sentence in count 3 for the conviction of false imprisonment and the
two-year concurrent sentence in count 5 for the conviction of threats to commit
a crime resulting in death or great bodily injury are stayed pursuant to
section 654. The trial court shall
forward a certified copy of the amended abstract of judgment to the
affirmed.
BLEASE , Acting
P. J.
We concur:
HULL , J.
ROBIE , J.
name="_ftn1" title="">[1] Further references to an undesignated section
are to the Penal Code.
name="_ftn2" title="">[2] The prosecutor told the jury that the count 2
assault with a semiautomatic firearm was based on defendant’s hitting Aramburo
with the gun, and that this was separate from holding the gun to Aramburo’s
head. There was no need to prove the gun
was loaded to show defendant had the present ability to commit an assault for
count 2.
