P. v. Cabrera

Filed 6/6/07 P. v. Cabrera CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Yvonne T. Sanchez, Judge. Remanded with directions, in all other respects, affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Joseph Gabriel Cabrera (Cabrera) appeals the judgment entered following his pleas of guilty to failing to register as a sex offender (Pen. Code, 290, subd. (f)(1)(A))^[1]and willfully resisting or obstructing a peace officer in the discharge of his or her duties ( 148, subd. (a)(1), his admission he previously had been convicted of two serious or violent felonies within the meaning of Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a jurys finding he committed assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). The trial court sentenced Cabrera to a term of four years in state prison. We remand the matter to the trial court for correction of a clerical error and, in all other respects, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The Prosecutions Case.

In July of 2006, June Morrow (Morrow) was living in her house at 15841 Marlinton Drive in the city of Whittier with her second cousin, Raelean Walker (Walker), and Walkers boyfriend, Cabrera. On the evening of July 8th, Walker and Cabrera came home from a day at the beach. When Cabrera went outside to the back patio, Morrows dogs started to bark and go[] crazy. After Morrow told the dogs to be quiet, Cabrera told them to keep barking, that they could do whatever they want[ed] and [that] he was going to do whatever he wanted. Believing that Cabrera was being irate, Morrow went to the back door and told him to keep his mouth shut.

Cabrera came inside the house and backed [Morrow] up into [a] corner in the kitchen. He placed his face approximately two inches from Morrows face, screamed at her in a very loud voice and told her that if she did not shut up, he would break [her] jaw. The two continued to argue and, when Morrow, who was

extremely frightened, told Cabrera to leave the house, he slapped her across the face. Morrow grabbed a nearby skillet to use to defend herself. However, Cabrera immediately took hold of Morrows arm and pushed it down, causing her to drop the skillet. Then, using the back of his hand, Cabrera again hit Morrow across the face. Throughout the altercation, Walker, who was standing approximately five feet from Cabrera and Morrow, was screaming for Cabrera to stop it.

At some point Cabrera backed away from Morrow and, while ranting and raving, walked out of the kitchen and into the front bedroom he shared with Walker. Morrow yelled after Cabrera, telling him she was going to call the police. She went into the living room, picked up the telephone and dialed 911. As Morrow was speaking with the 911 operator, Cabrera again approached her, threatened to kill her, then hit her in the right eye with his fist. The punch caused Morrow to s[ee] stars and knocked the phone out of her hand as she fell to the couch. However, Morrow was able to reach the telephone and continued to speak with the 911 operator, who informed her police were on their way. Before the police arrived, Cabrera hit Morrow again. As a result of the encounter, Morrow suffered a black eye, a fat lip, and swelling to both sides of her face which lasted for approximately three weeks.

Los Angeles County Deputy Sheriff Michael Del Real (Del Real) responded to the call reporting an assault in progress at Morrows house. As Del Real and his partner approached the house, Del Real saw that the front door was open and heard yelling from an open window in the front bedroom. Morrow walked in front of the open door, saw the deputies, told them to come inside and informed them Cabrera was in the front bedroom. Del Real approached the closed bedroom door, opened it, saw Walker standing in the room, then saw legs and feet exiting a[n] [open] window which was located . . . on the wall on the side of the house.

Del Real immediately left the house and was able to catch a glimpse of Cabreras back as he ran toward the back yard. Using his radio, Del Rio informed other sheriffs units in the area the assault suspect was running from the house and coordinated with them a containment of the area.

Los Angeles Sheriffs Deputy Steven Tousey (Tousey) was one of the officers who responded to Del Reals broadcast. Tousey parked his patrol car approximately one block from Morrows house, on Santa Gertrudes Street. By standing on the trunk of his car, Tousey was able to see into several backyards in the area. In the yard closest to him, Tousey spotted Cabrera pacing, doing circles in the back yard. Tousey yelled to Cabrera and asked him if he lived at the house. When Cabrera responded that he did, Tousey advised him that he might want to go inside because there [was] somebody running in [the] area. Cabrera continued pacing, then walked along the property line and disappeared underneath a patio cover as a police helicopter flew overhead.

When another sheriffs unit arrived, Tousey ran to the front of the house, where he again spotted Cabrera. Tousey and the officer assisting him ordered Cabrera to come out into the front yard, but Cabrera, who was squatting on the ground near the front doorway to the house, failed to respond. After a time, Cabrera got up to his feet and walked approximately ten feet toward the deputies. However, he still would not show his hands and, after he ignored Touseys repeated directions to drop to the ground, Tousey fired [a] taser at him. The other officer was then able to jump over the fence surrounding the yard and place Cabrera in handcuffs.

While other officers were detaining Cabrera, Del Real went back inside Morrows house to interview her. Del Real noted Morrow had a large amount of swelling on her face. She had large broken blood vessels in her eye and some bruising[,] . . . swelling and redness around her right eye. Del Real spoke with Morrow for between five and ten minutes. During that time, he did not smell any alcohol on her breath.

Once Cabrera had been detained, Del Real and his partner transported Morrow to the location on Santa Gertrudes where she positively identified him as the man who had hit her. Del Reals partner advised Cabrera of his Miranda rights, which Cabrera acknowledged and stated he understood. Cabrera then told the deputies that he and his girlfriend had gone to the beach for the day, where he had consumed 12 beers. Upon returning to Morrows house, Cabrera had become involved in an argument with her. During the argument, Cabrera blacked out and could not remember anything after that. When he heard a car pull up to the house and saw deputies with guns walking up to the front door, Cabrera got scared[,] . . . jumped through the window and ran.

b. Defense Evidence.

Raelean Walker married Cabrera on August 21, 2006.^[2] On Saturday, July 8, 2006, Walker and her then boyfriend, Cabrera, went to the beach for the day. While there, Cabrera consumed six beers. When Cabrera and Walker, who was eight months pregnant at the time, returned to Morrows house that evening, it appeared to Walker that Morrow had been drinking. Morrow was holding a blue cup in which she always had alcohol and she appeared to be slightly intoxicated.

A short time after arriving at the house, Walker heard Morrow and Cabrera begin to argue. Morrow was in the living room and Cabrera was standing at the doorway. Morrow and Cabrera moved closer to each other, began to push at one another and started to call each other names. They then began to move toward the kitchen. Walker followed and was standing approximately three feet from Cabrera when Morrow walked to the opposite side of the stove, grabbed a cast iron skillet and held it up. Cabrera walked over to Morrow, took hold of her hand and slapped it down onto the stove to make her drop [the skillet.] Morrow then told Cabrera he was to be out of her house by the following Monday. At that point, Walker grabbed Cabreras arm and walked with him toward their bedroom at the front of the house. Morrow, continuing to call Cabrera names, followed approximately three feet behind the couple. At some point, Cabrera pushed Morrow, causing her to fall onto the living room couch. Walker, in an attempt to diffuse the situation, told Cabrera to stop and Morrow to shut up, then took Cabrera into the bedroom and closed the door.

From inside the bedroom, Walker and Cabrera heard Morrow refer to Cabrera as a fucking asshole. Cabrera opened the bedroom door and told Morrow that if she did not get out of his face . . . he was going to punch her in the jaw. Morrow and Cabrera continued to bicker and Morrow threatened to call the police. When Morrow went into the living room to use the telephone, Cabrera returned to the bedroom. Morrow followed Cabrera to the bedroom door while talking on the phone. She was describing Cabrera and telling the person on the other end of the line what he was doing. Cabrera then approached Morrow and hit her in the side of the face. Morrow started to cry and told the person on the other end of the telephone Cabrera had just hit her and was going to kill her. Walker told Cabrera, [Y]ou just hit her, now you are going to jail. Cabrera then took off and went out the window of the bedroom. Approximately two to three seconds later, police officers came through the door. Walker, who was present for the entire argument, never heard Cabrera threaten to kill Morrow.

Cheryl Stamp (Stamp) is Walkers sister. On July 28, 2006, the day of Cabreras preliminary hearing, Stamp was with Walker at Morrows house. Morrow did not come home until approximately 1:00 the following morning. When she arrived, Morrow was mad, drunk and yelling. Stamp heard Morrow say that she would say whatever she ha[d] to to keep [Cabrera] locked up in jail and that it did not matter what Walker or Cabrera said because [Cabrera] is a convict and they will believe anything she[,] [Morrow,] says.

Suzanne Zurbrugg (Zurbrugg) is the mother of Walker and Stamp. After the police had taken Cabrera into custody on July 8, 2006, Morrow telephoned Zurbrugg and asked her to come to the house. When Zurbrugg arrived, Morrow told her The family should stick together. So what if its a lie, prove it.

2. Procedural History.

On August 11, 2006, Cabrera was charged by information with the making of criminal threats ( 422) (count one), failing to register as a sex offender ( 290, subd. (f)(1)(A)) (count two), intimidating or dissuading a witness by means of force or the express or implied threat of force ( 136.1, subd. (c)(1)) (count four), assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) (count five), and willfully resisting or obstructing a peace officer in the discharge of his or her duties ( 148, subd. (a)(1) (count six).^[3] It was further alleged as to counts one, two and four that Cabrera previously had suffered two felony convictions for willfully committing a lewd act on a child under 14 years of age in violation of section 288, subdivision (a) within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had served three prior prison terms ( 667.5, subd. (b)), and previously had been convicted of two serious felonies within the meaning of section 667, subdivision (a)(1).

At proceedings held on October 10, 2006, Cabrera waived his right to a jury trial, to confront and cross-examine the witnesses against him, the right to present a defense and his privilege against self-incrimination and pleaded guilty to the charge alleged in count two of the information, failing to register as a sex offender, and admitted previously having suffered two serious felony convictions within the meaning of the Three Strikes law. The remaining counts and allegations were to be tried before a jury. Cabreras motion to have the trial on the remaining prior conviction and prison term allegations bifurcated from the trial on the remaining substantive offenses was granted.

On October 13, 2006, after all the evidence with regard to the substantive offenses had been presented, the trial court granted the Peoples motion to dismiss the charge alleged in count four of the information, intimidating or dissuading a witness by means of force or the express or implied threat of force. At the same proceedings, Cabrera moved to dismiss the remaining counts pursuant to section 1118.1, asserting the evidence was insufficient to support them. The trial court denied that motion.

On October 17, 2006, the trial court received a note from the jury indicating it had reached a verdict as to one count, but was hung as to the remaining two. In the presence of counsel, the trial court called the jury to the courtroom and inquired of the foreperson if there was anything that would help the jury reach a verdict, read back of testimony, additional jury instructions, anything like that? The foreperson was of the opinion the jury was hopelessly deadlocked. However another juror, number eight, believed the jury might be able to formulate a question, the answer to which might be helpful. Based on juror number eights belief, the trial court sent the jury back to the jury room for further deliberations.

Later that day, the jury submitted the following question to the trial court: Should we consider whether or not we believe Mr. Cabrera may have been impaired by alcohol? Over Cabreras counsels objection, the trial court read to the jury CALJIC No. 4.21.1 as follows: It is a general rule that no act committed by a person while in the state of voluntary intoxication is less criminal by reason of that condition. [] Thus in the crimes of 245(a)(1) of the Penal Code [assault by means of force likely to produce great bodily injury] and 148(a)(1) of the Penal Code [willfully resisting or obstructing a police officer in the discharge of his or her duties], the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. [] However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of a crime. In that event, you should consider the defendants voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. [] Thus in the crime of 422 of the Penal Code [the making of criminal threats], a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crime set forth elsewhere in these instructions. [] If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not the defendant had the required specific intent or mental state. [] If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find that the defendant did not have the specific intent or mental state.

The jury then sent to the trial court two additional questions. Initially, it asked, Should we put ourselves in the shoes of all parties and witnesses to try and interpret the evidence? The jury further inquired, Should we take uncontested evidence at face value? In response to the questions, the trial court referred the jury to instructions previously given, then read the instructions again. The court stated in relevant part, . . . You must base your decision on the facts and the law. You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. A fact is something proved by the evidence. [] Second, you must apply the law as I state it to you to the facts as you determine them, and in this way arrive at your verdict. The trial court continued, Every person who testifies under [oath] is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness you may consider anything that has a tendency reasonably to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following: the extent of the opportunity or the ability of the witness to see, hear, or otherwise become aware of any matter about which the witness testified; the ability of the witness to remember or to communicate any matter about which the witness testified; the character and quality of that testimony; the demeanor and manner of the witness while testifying; the existence or nonexistence of a bias, interest, or other motive; the existence or nonexistence of any fact testified to by the witness; the attitude of the witness toward this action or toward the giving of testimony; a statement previously made by the witness that is consistent or inconsistent with his or her testimony.

Approximately one hour later, the jury sent to the trial court another note indicating it was still deadlocked as to two counts. After consulting with counsel, the trial court called the jurors back into the courtroom and asked the foreperson if there had been any change in the vote. When the trial court was informed there had been no change and that it was starting to become personal, the court questioned each juror individually with regard to whether further deliberations would be helpful. After each juror indicated the jury was hopelessly deadlocked as to two of the three counts, the trial court read the verdict form indicating the jury had agreed Cabrera was guilty of assault by means of force likely to produce great bodily injury as alleged in count five of the information, then declared a mistrial as to the other two counts.

. After some discussion between counsel and the trial court, it was agreed the court would dismiss the charge alleged in count one, the making of criminal threats, and that Cabrera would enter a plea as to count six, willfully resisting or obstructing a peace officer in the discharge of his or her duties. After receiving proper advisements, Cabrera pleaded guilty to obstructing a peace officer in the discharge of his or her duties. The trial court then dismissed in furtherance of justice pursuant to section 1385 the count alleging Cabrera had made criminal threats.

At sentencing proceedings held on October 27, 2006, the trial court struck one of Cabreras two Three Strikes prior convictions in the interest of justice. The court sentenced Cabrera to the middle term of two years in prison for his failure to register as a sex offender in violation of section 290, subdivision (f)(1)(A), then doubled the term to four years pursuant to the Three Strikes law. As to his conviction of count five, assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1), the trial court imposed a term of one year in county jail, the term to run concurrently to the term imposed for Cabreras conviction of section 290. With regard to count six, willfully resisting or obstructing a peace officer in the discharge of his or her duties in violation of section 148, subdivision (a)(1), the court imposed a term of one year in county jail, the term to run concurrently to the other terms imposed. The trial court awarded Cabrera presentence custody credit for 110 days actually served and 54 days of good time/work time, for a total of 164 days.

Cabrera timely filed a notice of appeal on October 27, 2006.

This court appointed counsel to represent Cabrera on appeal on February 28, 2007.

CONTENTIONS

After examination of the record, appointed appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed April 3, 2007, the clerk of this court advised Cabrera to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Cabreras counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.) However, we note the abstract of judgment does not accurately reflect the sentence imposed. Although the box indicating Cabrera was sentenced pursuant to the Three Strikes law is appropriately checked, the total sentence indicated is for only two, rather than the four years actually imposed. This clerical error must be corrected to

correspond to the trial courts oral pronouncement of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-188.)

DISPOSITION

The matter is remanded to the superior court to prepare a corrected abstract of judgment reflecting the judgment imposed by the trial court, a total sentence of four years in state prison, and to send a certified copy of the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Although Raelean Walker has now taken the name Raelean Cabrera, we continue to refer to her as Walker, not out of any disrespect, but to maintain consistency and clarity within the opinion.

^[3] Count Three, which alleged failing to register as a sex offender, was dismissed at the close of the preliminary hearing as duplicative.