P. v. Nunez
Filed 8/20/12 P. v.
Nunez 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Butte)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY MYLES NUNEZ,
Defendant and Appellant.
C068939
(Super.
Ct. No. CM033711)
Defendant Timothy
Myles Nunez pled guilty to being an accessory after the fact to
(Pen. Code, § 32.)
name="_ftnref1" title="">[1] On appeal, he contends the trial court abused
its discretion by imposing the upper-term sentence of three years in
BACKGROUND
On January 27, 2011, defendant, who
was 18 years old at the time, was home with his friends, Antonio Linares and
Jose Sanchez, drinking alcohol and smoking marijuana. Defendant stated he “had a gun and so did” Linares. Defendant and Linares “were
messing around and trying to ‘spin the gun on their fingers.’” Defendant stated he “put [his gun] away”
about “10 to 15 minutes” before Linares’s gun
“just ‘went off.’” The bullet
struck Sanchez in the side of the head as he sat at the kitchen table.
Sanchez tried to
hide behind defendant but defendant fled to the bedroom. Linares
shot Sanchez several more times in the head, arm, hand, and torso. Defendant emerged from the bedroom to find
Sanchez slouched in a chair. Sanchez
then fell to the floor. Defendant went
to lock the door and close the blinds, realizing that his nine-year-old sister
and a neighbor had witnessed the shooting through the window.
Linares
dragged the victim by his shirt to the front entryway. Linares
removed his bloody clothes and burned them, along with the victim’s wallet, in
the fireplace. There was blood
throughout the kitchen and living room areas from Sanchez’s moving around while
being shot. Defendant began collecting
cleaning supplies to clean up the blood.
Defendant also called Hector, Linares’s
stepbrother, and asked him to come over and pick up Linares.
Defendant and Linares
took two shower curtains from the bathrooms and wrapped Sanchez’s body in
them. Hector came to pick up Linares
and they left for about 30 minutes.
During that time, defendant cleaned the apartment with bleach and
towels. When Linares
returned with his pickup truck, defendant helped Linares
load Sanchez’s body into the truck. They
also burned additional items of their clothing and some towels in the fireplace
to cover up any evidence.
Defendant’s mother
came home and defendant made up a story about a friend being shot and taken to
the hospital. Defendant did not think
his mother believed the story because she had already talked to his sister. Linares
left, after which he dumped Sanchez’s body under a bridge and attempted to burn
it beyond recognition.
name="_ftnref3" title="">[3] When Linares
returned, he and defendant went to Linares’s
house, where they burned their shoes and the rest of their clothing. Defendant threw Sanchez’s keys into a creek
to “get rid of them.” With regard to the
guns, defendant stated that he “broke his up and threw it in places all over
town” and that Linares “had broken
his gun up and thrown it into the river and buried it in an orchard.” Defendant and Linares
then showered, ate, and went to bed. The
next morning, defendant and Linares
went to Hector’s house, where they ate breakfast and “hung out and smoked
marijuana.”
Two days after the
shooting, an informant contacted police to report that one of defendant’s
neighbors had witnessed the shooting. On
February 2, 2011, after
several days of investigation, police contacted Sanchez’s family, who reported
that they had not seen or heard from Sanchez for a week. It was unusual for Sanchez to be out of
contact for so long and they believed his phone had been shut off or had a dead
battery. Later that same day, police
executed a warrant to search defendant’s apartment.
When defendant
found out his apartment had been “raided,” he called Linares. At this point, they knew they needed to leave
town so they asked Hector for a ride to Gilroy. During the drive, defendant and Linares
remarked that they had left too much evidence behind and they would not get
away with the crime. Hector dropped them
off at a convenience store where they met defendant’s cousin.
The following day,
February 3, 2011,
detectives discovered Sanchez’s body under the bridge. The day after that, Hector came to the police
department, provided a candid report of what he knew, and gave detectives his
cell phone and consent to search it for evidence. With the assistance of the cell phone
carrier, detectives were able to use “pings” from the cell phone defendant and Linares
were using to locate them.
On February 5, 2011, officers
apprehended defendant and Linares
at a residence in Gilroy. Linares
was evasive when questioned about the shooting.
Defendant, however, gave a statement admitting his involvement.
On March 23, 2011, without a
prosecution, defendant pled guilty to being an accessory after the fact to
Sanchez’s murder.
The triad of
available prison term sentences for violation of section 32 (accessory after
the fact) is 16 months, two or three years in prison. (§§ 18, 33.) Prior to sentencing, the probation officer
submitted a report recommending the upper-term sentence be imposed based on the
planning and sophistication of defendant’s actions in covering up the underlying
crime and fleeing the jurisdiction, the underlying crime being one of great
violence, the high level of callousness or cruelty, and the vulnerability of
the victim, who was unarmed and among friends.
Additionally, defendant was on juvenile probation at the time of the
offense and his prior performance on probation was unsatisfactory.
Defendant
submitted a statement in mitigation and numerous letters from friends and
family for the trial court’s consideration during sentencing. He claimed he committed the offense out of
fear and “[h]is continued failure to contact law enforcement was due, in large
part, to his borderline intellectual functioning, which has resulted in an
ongoing lack of problem-solving ability.”
In support of this claim, he submitted a psychological assessment based
on an interview that had been performed two years earlier at the request of the
Butte County Department of Employment and Social Services to assist in
determining his eligibility for disability services.
At the commencement
of the sentencing hearing, the trial court indicated that, although the
upper-term sentence was warranted based on defendant’s conduct and the nature
of the underlying crime to which defendant was an accessory, it was inclined to
sentence defendant to the midterm based on consideration of the letters and
psychological assessment submitted by defendant. The court then assured the parties that it
had an open mind.
Thereafter, the
victim’s family members addressed the trial court, explaining how devastating
it was to be searching for the victim while defendant, the victim’s
murder, and how, not only had defendant made no effort to prevent the murder,
he had assisted in disposing of his friend’s body in an inhumane manner.
The prosecutor
then argued that, after defendant saw his friend shot and killed, he embarked
on a series of acts and decisions that warranted the upper-term sentence. Specifically, defendant cleaned up the
evidence of the crime in the apartment, helped wrap and load the victim’s body
in Linares’s truck for disposal,
lied to his mother in an attempt to cover up the crime, arranged for a place
for Linares and himself to hide,
and fled the jurisdiction with Linares. The prosecutor also noted that the
information provided to the court in the psychological report was contradictory
to the statements made by family and friends, none of whom mentioned anything
about defendant’s being “low functioning.”
helped cover up was a murder and defendant made “repeated decisions” to cover
up the murder that warranted the upper-term sentence.
Defense counsel
emphasized that, once arrested, defendant immediately admitted his involvement
and disclosed the details. Defendant
also entered a plea at an early stage and had a minimal criminal history.
After hearing
counsel’s arguments, the trial court provided a lengthy, reasoned explanation
for why it had changed its mind and was imposing the upper-term sentence. It recounted the facts of the offense,
detailing the ample and ongoing nature of defendant’s involvement in covering
up the murder. It noted that defendant
had several opportunities to “do the right thing,” such as call 9-1-1, refuse to cooperate with Linares,
or contact and cooperate with police. It
then specifically stated that it had reconsidered the appropriate sentence
while listening to the victim’s family members and the prosecutor speak. After the detailed explanation, the trial
court commented that it had “considered and discussed with other judicial
officers the fact that a person who has no really serious prior record should
ever get the upper term. But as [the
prosecutor] pointed out, we get the same sentence triad for accessory to a
gravity of the offense warrants an upper term and overrides all circumstances
in mitigation.” The court then sentenced
defendant to three years in state prison.
DISCUSSION
Defendant contends
the trial court abused its discretion in imposing the upper-term sentence. He contends the trial court essentially
created a “per se rule” that one who is an accessory after the fact is
sentenced to serve the upper term in prison if the crime to which one pleads is
murder. This assertion is based on the
trial court’s statement that the “mere gravity of the offense warrants an upper
term and overrides all circumstances in mitigation.” We reject defendant’s contention.
Defendant has
essentially seized upon an isolated comment made at the conclusion of the trial
court’s lengthy, reasoned explanation for why it was imposing the upper-term
sentence. The comment was made after
recounting the severity of defendant’s conduct in this case and providing the
trial court’s reasoning for changing its mind as to the appropriate
sentence. If the trial court had been
basing its decision to impose the upper-term sentence solely on the fact that defendant had been an accessory to murder,
creating a “per se rule” as now argued by defendant, it would not have
initially been considering the midterm –- nor would it have needed to detail
the gravity of defendant’s actions in a lengthy explanation of its sentencing decision. The trial court specifically indicated it had
been influenced by the victim’s family members’ statements, further
demonstrating its sentencing decision was not based solely on the fact that
this case involved a murder.
The record
reflects that the trial court appropriately considered the nature of the
offense. In this case, the offense
involved defendant’s going to great lengths to cover up the shooting death of
his friend, while his friend’s family was worried and looking for the
victim. Defendant also arranged for both
the shooter and himself to abscond and avoid prosecution.
right thing” and chose, instead, to continue the cover up. Defendant’s acts disclosed a high degree of
cruelty or callousness, a valid factor in aggravation. (Cal.
Rules of Court, rule 4.421 (a)(1).)
Defendant’s extensive and continued efforts to cover up the murder and
hide from law enforcement were “distinctively worse” than required to
constitute the offense of being an accessory after the fact. (People v. Zamarron (1994)
30 Cal.App.4th 865, 872; see also People v. Moreno (1982)
128 Cal.App.3d 103, 110 [“The essence of ‘aggravation’ relates to the
effect of a particular fact in making the offense distinctively worse than the
ordinary”].)
Contrary to
defendant’s assertion, the record demonstrates the trial court did take
mitigating factors into consideration, including defendant’s minimal criminal
history, the psychological report, and letters from family and friends. However, the trial court has wide discretion
to balance mitigating and aggravating circumstances, qualitatively as well as
quantitatively, and those mitigating factors did not compel the trial court to
impose less than the upper-term sentence.
(People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
In sum, the trial
court’s decision was “not arbitrary and capricious,” was “consistent with the
letter and spirit of the law,” and was “based upon an ‘individualized
consideration of the offense, the offender, and the public interest.’” (People
v. Sandoval (2007)
41 Cal.4th 825, 847.) We find no
abuse of discretion.
DISPOSITION
The judgment is
affirmed.
HOCH , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE ,
J.
name="_ftn1" title="">[1] Undesignated section references are to the
Penal Code.
name="_ftn2" title="">[2] Defendant also initially argued that the $40
court security fee was imposed in error but conceded there was no error after
reviewing the respondent’s brief.
Accordingly, for the reasons the parties recognize, we do not address
that issue.
