P. v. Torres
Filed 6/13/13 P. v. Torres CA4/3
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opinion has not been certified for publication or ordered published for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.
RAUL TORRES,
Defendant and Appellant.
G046380
(Super. Ct. No. 08HF0862)
O P I
N I O N
Appeal from a judgment
of the Superior Court
of
County, David A. Hoffer, Judge. Affirmed as modified.
David L. Polsky, 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, James D. Dutton and Stephanie H. Chow,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant
Raul Torres challenges his convictions for felony child endangerment and felony
vandalism. He also says the court
violated the ex post facto laws in affixing the amount of the restitution fines
imposed against him. Substantial
evidence supports the convictions for felony
vandalism. However, we agree that the
amounts of the restitution fines should be reduced from $240 to $200 each
because the trial court intended to impose the minimum restitution fines and it
imposed the minimum restitution fines in effect at the time of sentencing
rather than the minimum restitution fines in effect at the time the crimes were
committed. We affirm the judgment but
direct that the abstract of judgment be corrected to set the
I
FACTS
A. Background:
Defendant
and A. were married in 2001. Although
the two of them had no children together, defendant helped raise A.’s youngest
son from the time he was an infant.
Defendant and A. were separated from time to time and A. had threatened
to file for divorce before the incident in question.
A.
was living in an apartment with her youngest son, then eight years old (the
boy), her daughter, and her sister, K.
A. was at home with K. and the boy when defendant, who was drunk,
arrived in the early morning hours of April
5, 2008. A. did not want
defendant to come in, but K. opened the door.
A. was hiding under the blanket in bed because she did not want
defendant to see her. The boy was asleep
in bed in the same room.
A.
told the police that defendant came in, pushed K. aside, and said, “‘Where is
this bitch? I’m going to kill
her.’†She also told them she was on the
bed with the boy right next to her, screaming, while defendant was swinging a
knife at her, putting it to her neck, and saying he was going to kill her.
K.
got defendant out of the bedroom. She
told the police that after defendant left the bedroom, he dropped the knife and
started throwing things at the 37-inch flat screen television, which he
broke. Defendant then left the apartment
and broke the bedroom window from the outside, smashing it with a baseball
bat. Broken glass landed on the bed,
which was under the window.
K.
and a neighbor each called 911. The
police came and A. told them she was afraid that defendant, a gang member,
would retaliate against her for talking to the police.
B. Judgment:
The
jury found defendant guilty of aggravated
assault (Pen. Code, § 245, subd. (a)(1)), felony
§ 273a, subd. (a)), two counts of misdemeanor vandalism (Pen. Code,
§ 594, subds. (a), (b)(2)(A)), felony vandalism (Pen. Code, § 594,
subds. (a), (b)(1)), making criminal threats (Pen. Code, § 422) and
stalking (Pen. Code, § 646.9, subd. (a)).
It found true that the amount of damage caused by the felony vandalism
of a 37-inch flat screen television was $400 or more and that defendant used a
dangerous or deadly weapon at the time he made the criminal threats. He was sentenced to a total of 21 years in
prison. He was ordered to pay a
restitution fine in the amount of $240 (Pen. Code, § 1202.4, subd. (b))
and a parole revocation restitution fine in the same amount (Pen. Code,
§ 1202.45).
II
DISCUSSION
A. Felony Child Endangerment:
(1) Penal Code section 273a—
Penal
Code section 273a, subdivision (a) provides:
“Any person who, under
circumstances or conditions likely to produce great bodily harm or death,
willfully causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering . . . shall be punished by
imprisonment in a county jail not exceeding one year, or in the state prison for
two, four, or six years.†(Pen. Code,
§ 273a, subd. (a), italics added.)
In
contrast, Penal Code section 273a, subdivision (b) provides: “Any person who, under circumstances or conditions other than those likely to produce
great bodily harm or death, willfully causes or permits any child to
suffer, or inflicts thereon unjustifiable physical pain or mental suffering . .
. is guilty of a misdemeanor.†(Pen.
Code, § 273a, subd. (b), italics added.)
In other words, the same conduct is either a felony or a misdemeanor
depending upon whether the circumstances or conditions made it
bodily harm or death. (
Defendant
claims he should not have been convicted of a felony because there was
insufficient evidence to show that his actions made it likely that the boy
would suffer great bodily harm or death.
He says this court should reduce his conviction to a misdemeanor.
In
People v. Sargent (1999) 19 Cal.4th
1206, the Supreme Court, without analyzing the language of Penal Code section
273a, noted that the felony provision was “‘intended to protect a child from an
abusive situation in which the probability of serious injury [was] great.’ [Citation.]â€
(Id. at p. 1216.) Picking up on the court’s wording, defendant
says the felony conviction was improper because the evidence did not show that
his conduct “posed a ‘great’ risk of serious bodily injury or death to†the
boy.
However,
the court in People v. Wilson,
Court in People v. Sargent,
probability of serious injury is great[,]’†was dictum. (People
v. Wilson, supra,
In construing the statute, we to look its language, which addresses
whether the action was taken “under circumstances or conditions
death.†(Pen. Code, § 273a, subd.
(a), italics added.) As the court in
1197 observed, “the definition of ‘likely’ in the context of section 273a is
not that the death or serious injury is probable or more likely than not.†(Id. at
p. 1204.) “‘[L]ikely’ as used in section
273a means a substantial danger, i.e., a serious and well-founded risk, of
great bodily harm or death.†(
In
any event, it is for the trier of fact to “determine whether the infliction of
the unjustifiable physical
pain or mental suffering on a child was under circumstances or conditions
likely to produce great bodily harm or death.â€
(People v. Sargent,
determining whether the evidence is sufficient to support the verdict, we
review the entire record viewing the evidence in the light most favorable to
the judgment and presuming in support of the verdict the existence of every
fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed
discloses evidence that is reasonable, credible and of solid value such that a
rational trier of fact could find the elements of the crime beyond a reasonable
doubt. [Citation.]†(People
v. Wilson, supra,
For
reasons we shall show, we conclude that substantial evidence supports both a
finding that defendant’s conduct caused a substantial danger, that is, a
serious and well-founded risk, of great bodily harm or death to the boy (
great risk of serious bodily injury or death to the boy (People v. Sargent, supra,
proper.
Evidence—
(a)
use of a knife
Purportedly,
defendant willfully undertook acts—confronting A. with a knife in the presence
of the boy and smashing the bedroom window—that caused mental suffering to the
boy, under circumstances or conditions likely to produce great bodily harm or
death. Defendant argues there is no
substantial evidence to show that he used a knife so as to place the boy at
great risk of suffering bodily harm or death.
(i)
A.’s statements and testimony
A.
admits that she told the police the boy was right next to her on the bed when
defendant started swinging a knife at her, putting it to her neck, and saying
he was going to kill her. She also
admits she told them that when defendant put the knife to her neck, the boy was
screaming, “‘Daddy, don’t kill my mom.’â€
At the time of trial, however, A. said that while it was true the boy
was next to her in the bed during the altercation, she had lied about
defendant’s using a knife and making threats.
She said she had lied in order to get defendant arrested. At the time of trial, A. acknowledged that
the boy had led the police to a knife under the kitchen sink, the knife did not
belong to either her or the boy, and it was not under the sink before defendant
came to the apartment.
Police
Officer Alberto Lopez responded to the scene around 1:25 a.m. on April 5,
2008. Officer Lopez testified that A.
and the boy each appeared to be afraid.
According to Officer Lopez, A. said she felt threatened and that she
feared defendant or his gang would retaliate against her because she had spoken
to the police. Officer Lopez testified
that A. told him defendant had been yelling at her, swinging a knife at her,
lunging at her, and threatening to kill her.
Officer Lopez said that according to A., the boy had been crying,
yelling to call the police, and telling her to get away.
Officer
Lopez testified that A. told him defendant had left the knife on the coffee
table. The knife wasn’t there when
Officer Lopez looked for it, but he later found it under the kitchen sink.
Police
Officer Julian Trevino was assigned to investigate the April 5, 2008
incident. His first contact with A. was
a few days afterward. Officer Trevino
said A. “was very emotional, crying at times.â€
A. reported to Trevino that defendant was angry with her and
threatening, while holding a knife, and said he was going to kill her.
On
April 27, 2008, A. called the police in connection with a stalking incident at
a miniature golf course. Police Officer
Jared Shurley testified that when he interviewed A., she mentioned the April 5,
2008 incident, and told him that defendant had held a knife to her throat and
said he was going to kill her.
K.
admitted having told the police that defendant had lunged at A. with a knife in
his hand going towards A.’s face and that when he left the bedroom, he dropped
the knife and grabbed some stuff to start throwing at the television. The 911 recording of K.’s call also reflected
that she told the dispatcher defendant had pulled a knife. However, K. testified at trial that what she
said had about the knife was a lie told at the request of her sister. She also testified that defendant did not
threaten to kill A. Rather, she
testified that defendant was drunk and pointed his finger about an inch away
from A.’s face, but without a knife.
Defendant
also points out inconsistencies in the evidence concerning the exact location
of the boy during the altercation in the bedroom and says there is no evidence
concerning the boy’s precise whereabouts when the window was shattered. Given this, he says there is no substantial
evidence to show that either the altercation or the breaking of the glass posed
a risk of great bodily harm or death to the boy.
A.
testified that there were two beds in her bedroom—a big bed for herself and a
“SpongeBob†bed in the corner for the boy.
She further testified that she was hiding under the blanket in the big
bed when defendant entered the room and that the boy was asleep in the big
bed.
However,
Officer Lopez testified that A. had said the boy was in his bed right next to
hers, at the time of the altercation.
According to Officer Lopez, A. had said defendant was at the edge of the
bed swinging at her, lunging at her, and saying he was going to kill her. Officer Lopez indicated that defendant would
have been situated between the two beds and that there was about a two-foot
space between them. He also testified
that, according to A., when defendant shattered the window, she was still on
the bed.
At
trial, K. testified that A. had gotten into bed with the boy and pretended to
be asleep. K. further testified that the
boy was still in the bedroom when defendant broke the television, located in
the living room.
the neighbor’s testimony
The
neighbor, who lived in the same apartment building as A., heard a woman
screaming a type of scream that was not from “normal arguing.†He said, “[i]t was actual terror like†and he
heard a lot of crashing and stuff. After
the police left, the neighbor went downstairs and spoke to the woman, who was
extremely shaken up and was crying. The
neighbor also saw a boy who “was extremely shaking [sic],†with “extremely fearful†and “terrified†eyes.
Clearly,
there was conflicting testimony as to whether defendant used a knife when he
confronted A. and whether he threatened to kill her. A. and K. both told the police that defendant
had used a knife and A. also told them that defendant had threatened to kill
her. The police found a knife under the
kitchen sink. At trial, A. and K. both
recanted significant portions of their stories.
While A. explained that she had said what she did merely because she
wanted defendant to get arrested, she had also told the police that she was
afraid to speak to them because defendant was a gang member and she feared gang
retaliation. Given the information
provided to the police, the finding of a knife at the scene, the descriptions
by Officer Lopez and the neighbor of the fearfulness of both A. and the boy,
and the fact that A. had said she feared gang retaliation, there was
substantial evidence from which a reasonable jury could conclude that what A.
and K. told the police immediately after the incident was true—that defendant
had threatened A.’s life with a knife in the immediate presence of the boy—and
that A. and K. later changed their stories out of fear of gang
retaliation.
Furthermore,
the testimony of A. and K. about the location of the boy provides substantial
evidence to show that the boy was in the same bed as A. when defendant
threatened to kill her and lunged at her with a knife. Although Officer Lopez testified that A. had
told him the boy was in his own bed, even if that were the case, a reasonable
jury could still conclude that the boy was in harm’s way. Officer Lopez said there was only about a
two-foot space in between the two beds and that defendant would have been
standing between those two beds, when lunging at A. with the knife. To put a frantic, terrified child in fear of
his mother’s life in such close proximity of a swinging knife surely is to put
that child in harm’s way. There is no
telling what he might have done, whether he might have run and potentially
collided with a swinging knife, or whether he even might have tried to block
the knife. To say that there was no risk
of great bodily harm or death is sheer folly.
Defendant
is correct that we do not have testimony concerning the exact whereabouts of
the boy when the window was shattered.
We have evidence that he was in the same bed as A. during the
altercation with defendant and that A. remained in that bed, situated below the
window, when defendant shattered it. We
also have evidence that the boy was still in the bedroom when defendant broke
the television. We have no evidence that
the boy left the bedroom before defendant broke the window. The jury may have doubted that a small and
frightened child would have left his mother’s side after such a terrifying
episode. In the absence of any contrary
information, it may reasonably have deduced that the boy remained next to his
mother when defendant shattered the window above the bed, putting the boy at
risk of injury from flying shards of glass.
“‘On
appeal, we must view the evidence in the light most favorable to the People and
must presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.
[Citation.]’†(
1206.) Here, the evidence was sufficient
to support a finding that defendant willfully placed the boy at risk of great
bodily harm or death when he lunged at A. swinging a knife, in the immediate
proximity of the boy, and when he shattered a glass window above the bed in
which the boy and his mother took refuge.
B. Felony Vandalism:
Vandalism
is a felony when the property damage is $400 or more and a misdemeanor when the
property damage is less than $400. (Pen.
Code, § 594, subd. (b); Sangha v. LaBarbera
(2006) 146 Cal.App.4th 79, 87, fn. 6.)
Misdemeanor vandalism is a lesser included offense of felony
vandalism. (Sangha v. LaBarbera, supra,
evidence to show that he caused at least $400 in damage to the television. Consequently, he says this court must reduce
his conviction to misdemeanor vandalism.
Evidence—
Defendant
emphasizes that the only information on the type of damage to the television
came from A., who stated that the screen was broken. He points out that the screen is not the only
component to a television and that there was no testimony regarding whether the
television could have been fixed or how much it would have cost to fix it.
He
also cites the testimony of Officer Trevino as showing that the television
itself was worth only several hundred dollars.
That characterization of his testimony is misleading, however. At trial, Officer Trevino was asked how much
A. had said she paid for the television.
Officer Trevino replied, “I believe it’s several hundred dollars she
said.†Officer Trevino was then asked
whether it would refresh his recollection to look at a copy of the transcript
of recordings of his conversations with A.
The officer replied affirmatively.
Having reviewed the transcript, the officer stated, “She said she paid
$1,500 for a TV.â€
Defendant
also notes that there were inconsistencies in A.’s statements. A. told Officer Lopez that she had paid
$1,300 for the television and she told an investigator that defendant had given
her $1,000 to replace the television, but at trial A. testified that she had
lied on both points. Ultimately, A.
conceded at trial that defendant had gotten her a replacement television for
$1,000 on a payment plan, and clarified that he had not handed her $1,000.
Although
A.’s testimony was contradictory, her testimony was not the only evidence
before the court. In addition, the jury
had for its consideration two photographs of the broken television that were
entered into evidence. The jurors thus
had an opportunity to see for themselves the general size and character of the
television and the kind of damage inflicted upon it.
There
was ample evidence to support a finding that at least $400 in damage was inflicted
upon a 37-inch flat screen television.
“‘“Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. [Citation.]â€
. . . .’
[Citation.]†(
306.)
Relevance—
Defendant
says all the evidence concerning the purchase price of the television was
irrelevant, particularly considering that there was no information on the age
of the television or its condition. He
also says that the evidence about the cost of a replacement television was irrelevant
because there was no information on whether the replacement television was
comparable to the one that had been damaged.
Given this, he contends the determination that there was at least $400
in damage to the television was based on pure speculation, and a conviction
cannot be supported by mere speculation.
(People v. Marshall (1997) 15
Cal.4th 1, 35 [mere speculation insufficient].)
Defendant
maintains that the only thing that was relevant was the fair market value of
the property that was destroyed. He
cites cases to the effect that in determining whether a defendant has committed
grand theft (Pen. Code, § 484) or whether a sentencing enhancement (Pen.
Code, § 12022.6) should apply with respect to the theft of property
exceeding $100,000 in value, the key is the fair market value of the stolen
property. (See People v. Pena (1977) 68 Cal.App.3d 100; People v. Swanson (1983) 142 Cal.App.3d 104.) However, defendant has not cited a case
showing that only the fair market value of vandalized property is relevant when
assessing the amount of damage to it. If
the side of a house were marred with graffiti, it is unlikely that we would
affix the amount of damage at the fair market value of the house, and therefore
unlikely that we would need testimony about its fair market value.
An
owner of property is competent to testify as to its value. (Schroeder
v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921; cf. People v. Prosser (2007) 157 Cal.App.4th 682, 684.) True, A. did not testify as to the value of
the television at the time it was damaged and did not opine as to whether the
television was repairable, and if so, the cost of repair. However, she did provide information on the
nature of the television—that it had a 37-inch flat screen, the original cost
of the television, and the price of the television she accepted in
replacement. She was competent to
testify as to these matters and the weight to be given to A.’s testimony was
for the jury as the trier of fact. (
Furthermore, the jurors had the photographs of the television to aid
their determination as to the amount of damage sustained. There has been no suggestion that the value
of a 37-inch flat screen television, or the cost of a damaged screen, is so
beyond the common experience of the average juror that expert testimony should
have been provided on the point. (See
Evid. Code, § 801.) There is
substantial evidence to support the finding that the damage to the television
was at least $400, so as to support a felony vandalism conviction.
C. Restitution Fines:
Effective
January 1, 2012, the minimum restitution fine, pursuant to Penal Code section
1202.4, subdivision (b)(1), was increased from $200 to $240 for a felony
conviction. (Stats. 2011, ch. 358,
§ 1.) Although defendant committed
his crimes in 2008, he was sentenced in 2012.
The court imposed a $240 restitution fine (Pen. Code, § 1202.4,
subd. (b)) and a parole revocation restitution fine in an equal amount (Pen.
Code, § 1202.45).
Defendant
asserts that it was clear the court intended to impose the minimum restitution
fine. Indeed, the court stated from the
bench: “The court is also going to
impose the restitution fine. Maybe
counsel could help me with the amount of that restitution fine.†Counsel for the People responded, “I believe
it’s now $240, isn’t it?†Defendant’s
counsel stated, “I would submit.†The
court then stated, “I think it’s gone up to $240, and I’ll also impose the
parole revocation restitution fine in the same amount, but that will be stayed
pending any future violation of parole.â€
Defendant
argues that because the court imposed the $240 minimum restitution fine in
effect as of January 1, 2012 instead of the $200 minimum restitution fine in
effect in 2008, the court violated the ex
post facto clauses of the federal and the state Constitutions. As the Supreme Court has observed, “It is
well established that the imposition of restitution fines constitutes
punishment, and therefore is subject to the proscriptions of the ex post facto
clause and other constitutional provisions.
[Citations.]†(
143.)
The
People, however, say the court had the power to impose a $240 restitution fine
(inasmuch as, even under the old statute, $200 was the minimum, but not the
maximum). At the same time, they concede
the record indicates that the court’s intent was to impose a fine in the
minimum statutory amount, which would have been $200 for a felony committed in
2008. The People, then, say this court
has the power to correct the apparent error.
(See People v. Mitchell (2001)
26 Cal.4th 181.)
We
agree that the record indicates an intent on the part of the court to impose
restitution fines in the minimum amount, for felonies committed in 2008. Consequently, the abstract of judgment must
be corrected to set the restitution fine and the parole revocation restitution
fine at $200 each.
III
DISPOSITION
The
judgment is affirmed. The clerk of the
superior court shall correct the
abstract of judgment to set the
restitution fine and the parole revocation restitution fine at $200 each. A copy of the corrected abstract shall be
forwarded forthwith to the Department of
Corrections and Rehabilitation.
MOORE,
J.
WE CONCUR:
O’LEARY, P.
J.
IKOLA, J.
