P. v. Cuevas

Filed 10/19/06 P. v. Cuevas CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This case, along with four others we address in separate opinions,[1] arises from a violent street fight between rival gang members. Mauricio Cuevas pleaded no contest to attempted murder (Pen. Code, §§ 187, 664)[2] and assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted great bodily injury (§ 12022.7) and gang-related enhancements (§ 186.22, subd. (b)). He was sentenced to 20 years imprisonment. On appeal and in the related petition for writ of habeas corpus, Cuevas contends the trial court improperly relied on Cuevas’s placement in a certain pretrial grouping to impose a lengthy prison sentence. We affirm the judgment and deny the habeas petition.

BACKGROUND

I. The Offense and Investigation

On August 25, 2002, police officers responded to a report of a fight involving several people.[3] They arrived to find two individuals lying on the ground covered in blood. Both appeared to have multiple stab wounds and other visible injuries, and one of the victims was unresponsive. En route to the hospital, victim Grame Kanongataa said he and his friends were at the Arco gas station when they were attacked by a group of approximately 14 people. Kanongataa appeared to have been drinking alcohol. He refused to answer further questions about the incident and became so combative with hospital staff that he had to be restrained. Kanongataa suffered 10 to 12 puncture wounds during the fight. These were stapled closed and he was discharged from the hospital the same night.

Victim William Rodriguez drifted in and out of consciousness on the way to the hospital, and he appeared to be highly intoxicated. He was mostly unresponsive to questions about the incident but eventually stated that he was cleaning a car windshield when he was attacked by a group of men. At the hospital, exploratory surgery was performed to determine the extent of Rodriguez’s injuries. He had sustained stab wounds and a deep puncture wound to his torso, near the liver, but the internal organs remained undamaged. Rodriguez had also been struck several times with a blunt instrument.

Witnesses interviewed at the scene reported that the victims had been assaulted on the gas station’s sidewalk and then chased into the road by a group of individuals who fled before the police arrived. The assault appeared gang-related. The attackers, who appeared to be members of the Sureño gang, rode in as many as five vehicles. Of these, witnesses described only three: a green Volkswagen Jetta, a white Ford Mustang, and a white Jeep-type vehicle. One of these vehicles ran into Kanongataa, knocking him to the ground.

When he was interviewed, Erlin Rodriguez, William’s brother, referred to the attackers as “ ‘scraps,’ “ a derogatory name for members of the Sureño gang, and he admitted he and William were Norteño gang members. Erlin said he had yelled a derogatory statement about the Sureño gang to some passing cars. These cars stopped and the attackers emerged, yelling derogatory remarks about Norteños and running toward Erlin. As he fled, pursued by Antonio Hernandez, he yelled to William and Kanongataa for help. Erlin witnessed the ensuing fight. He told police one of the attackers hit William with an “ ‘ASP’ style baton,’ “ and the assailants hit and kicked William numerous types after he fell to the ground.

Later that night, Hernandez and other individuals brought Luis Santana to the hospital for treatment of a stab wound to Santana’s arm. Police officers who reported to the hospital noticed several of these individuals had blood stains on their clothing, and they were not forthcoming in explaining what had happened. Santana initially told police he had been at a wedding reception, where he became extremely intoxicated. He did not know where he went afterward but believed he cut his arm when he fell onto a piece of glass. Later, on September 5, 2002, Santana acknowledged to police that he had been involved in the altercation, but he claimed he was the one who was attacked. He admitted striking William Rodriguez with a black stick but said he did so only after Rodriguez stabbed him. When Hernandez was interviewed on September 12 and 13, 2002, he also claimed the victims provoked the fight. Though he admitted being a gang member, Hernandez denied assaulting or stabbing anyone, claiming he had only watched the fight and chased one of the victims. He refused to identify anyone except Santana.

A female witness who had been riding in Santana’s car said many of the suspects were at a wedding reception earlier that evening, and afterward she went with Santana and Hernandez to Benjamin Moreno’s house. Many Sureño gang members were present here. Around 1:00 a.m., four to five carloads of people left to go to another location. Santana drove his Volkswagen, taking Hernandez, the witness and another female passenger. She also recalled that Martin Mesa drove his white Ford Taurus and took several passengers. While driving, the group encountered the victims at a gas station, and gang-related slurs were exchanged. Then, the men exited their cars and attacked the victims. The witness believed someone in her group may have passed around knives. Although she initially said Santana had cut his arm on a piece of glass after the wedding reception, the witness later said she believed he was accidentally stabbed by one of his fellow gang members. She identified Jose Gomez as having been at Moreno’s house, and she identified Santana, Moreno, Cesar Ramirez and Sergio Zarate as having been involved in the assault. Another female witness identified the same individuals plus Hernandez, Mesa, Jesus Flores and appellant Mauricio Cuevas. Although she did not recall who had stabbed the victims, she knew Cuevas and Moreno were carrying small knives before the assault.

The police interviewed several suspects. When Cuevas was interviewed, he initially denied being present during the assault. Eventually, he admitted being present but denied exiting his car or participating in the attack. He said he was on parole from the California Youth Authority (CYA) and was not permitted to associate with known gang members. He refused to identify anyone involved in the assault or anyone who rode in his car. Police officers later obtained tape recordings of phone calls Cuevas made to his mother while he was in custody. During these calls, Cuevas blamed the victims for the assault and mentioned Santana by name. He also told his mother to have a person “ ‘call the girls to get their stories straight.’ “

Other suspects who were interviewed denied involvement in the fight. Zarate admitted to having been a Sureño gang member but claimed he was no longer in the gang and was elsewhere on the night of the fight. He minimized his relationship with other suspects and denied having contact with Cuevas despite evidence of 47 cellular phone calls between them. Zarate later told police he had been informed by his girlfriend that he called Cuevas on the night of the fight, but he claimed he did not recall the conversation because he was intoxicated when it took place. Similarly, Flores described himself as an ex-gang member and denied involvement in the assault. He also denied communicating with Cuevas despite cellular telephone records indicating he had.

II. Procedural History

On December 15, 2003, the grand jury returned an indictment against 14 defendants. Eventually, after motions and changes of plea resulted in the early resolution of charges against some defendants, a fourth amended indictment was filed against only six defendants: Cuevas, Delgado, Gomez, Hernandez, Mesa and Santana. Count I charged them all with the attempted premeditated murder of William Rodriguez (§§ 664, subd. (a), 187, subd. (a)); count II charged them with the attempted premeditated murder of Grame Kanongataa; count III charged them with assault with a deadly weapon against Rodriguez (§ 245, subd. (a)(1)); counts IV and V charged them with assault with a deadly weapon against Kanongataa (count IV referring to the use of knives and baton-type weapons, and count V referring to use of a motor vehicle); count VI charged them with assault with a deadly weapon against Erlin Rodriguez; count VII charged them with participation in a street gang (§ 186.22, subd. (a)); and count VIII charged Santana with threatening a witness (§ 136.1, subd. (c)(1)). The indictment also alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and commission of crimes to benefit a criminal street gang (§ 186.22, subd. (b)(1)).[4]

On October 13, 2004, Cuevas waived his rights and pleaded no contest to the attempted murder of William Rodriguez and the assault with a deadly weapon on Grame Kanongataa. (§§ 187, 664, 245, subd. (a)(1).) He also admitted enhancements to both charges for personally inflicting great bodily injury and committing crimes to benefit a street gang. (§§ 12022.7, 186.22, subd. (b)(1).) On the change of plea form, Cuevas indicated his understanding that he could be sentenced to a maximum term of 26 years imprisonment. After a sentencing hearing, the trial court sentenced Cuevas to serve a total term of 20 years imprisonment, calculated as the midterm of seven years on the attempted murder charge, plus three years for the great bodily injury enhancement and 10 years for the gang enhancement. The court also imposed a concurrent three-year sentence and three-year enhancement on the assault charge.

DISCUSSION

In his appeal and habeas petition, Cuevas contends his sentence is fundamentally unfair because it resulted from his pretrial grouping with more active participants. He argues the trial court abused its discretion and committed misconduct by following a predisposition to assign harsher sentences to all defendants in Cuevas’s group. There are many problems with Cuevas’s argument, not the least of which is the total lack of evidence to support it.

At a pretrial conference early in the case, the trial court was faced with a dilemma. Five of the 12 codefendants requested continuances, based upon showings of good cause, yet some other defendants refused to waive their speedy trial rights. The court granted the continuances and suggested the attorneys discuss severing some of the cases. On April 30, 2004, Cuevas filed a formal motion to sever his case from the other codefendants, arguing that a joint trial would prejudice his case and result in a denial of due process. “[O]r at the very least,” Cuevas argued, “the group of 12 defendants [should] be broken into smaller groups.” In a later filing, Cuevas again urged the court “to break up the group into smaller trial units.” Based on evidence recently gathered about and from Hernandez, Cuevas stated his “only request is that he not be placed in a smaller trial group with Mr. Hernandez . . . or with Mr. Santana.”

Although the prosecution opposed the severance motions filed by Cuevas and four other defendants, on May 10, 2004, the court indicated its tentative decision to grant the motions. Picking up on the suggestion in Cuevas’s motion that the cases proceed to trial in smaller groups, the court asked the parties to propose how the defendants should be grouped. One possible configuration the court suggested would have divided the cases into five trials: (1) Bejar, Santana and Gomez (the lead case); (2) Hernandez, Gonzalez and Cuevas; (3) Ramirez, Zarate and Mesa; (4) Rendon and Delgado; and (5) Silva (to be tried alone). The court heard extended argument on the severance motions on May 14, 2004, but no alternative grouping of the cases was proposed. On May 28, 2004, the court granted the severance motions but, in view of alleged attempts by some defendants to intimidate witnesses, the court decided to divide the remaining 10 cases into two groups of five defendants. In “Group A,” the court placed Bejar, Santana, Gomez, Hernandez and Cuevas. “Group B” consisted of Zarate, Delgado, Ramirez, Mesa and Gonzalez. The prosecutor filed a motion to seat dual juries, so that the trials could proceed simultaneously. In his written opposition to this motion, Cuevas asked only “that the court allow its previous ruling to stand, breaking the group of 10 defendants into two smaller groups.” He did not object to the composition of the two groups.

On September 23, 2004, shortly before the cases were set to begin trial with dual juries, the prosecution filed a motion for consolidation. Because three defendants had entered pleas and a fourth’s case had been severed, only six defendants remained in the two groups: Santana, Gomez, Hernandez and Cuevas in Group A, and Delgado and Mesa in Group B. The court granted this motion and consolidated the six cases for trial. During a hearing on October 5, 2004, addressing motions in limine, Hernandez’s counsel advised the court that the day before the prosecution had offered a plea agreement to all defendants. The agreement, which was the same for all defendants, would have resulted in only one “strike” conviction but it did not permit the possibility of probation. Then, on October 5, 2004, counsel reported that the prosecution made a new offer, which would have resulted in two strikes and exposure to higher maximum sentences but would have allowed the defendants to seek probation.

On October 13, 2004, all of the codefendants expressed their willingness to accept a package settlement offer from the prosecution, in which they would plead no contest to two charges (assault and attempted murder) in exchange for dismissal of the allegation that they had acted with premeditation. Hernandez and Cuevas, originally in Group A, and Delgado, originally in Group B, were questioned together and entered pleas at the same time to the charges of assault and attempted murder and the great bodily injury and gang-related enhancements.

Because these were “open” pleas, i.e., carrying no agreement or indication as to sentence, sentencing was left to the trial court’s discretion. (See Liang v. Superior Court (2002) 100 Cal.App.4th 1047, 1056.) The probation department recommended that Cuevas be sentenced to consecutive aggravated terms, for a total sentence of over 27 years imprisonment. While recognizing it was unclear exactly who used weapons or inflicted great bodily injury, the probation department advised “an immediate and lengthy state prison term” for Cuevas based on “[t]he viciousness of the attack, Cuevas’[s] failure to accept responsibility, his prior record of criminal conduct, and his poor performance on CYA parole and juvenile probation.” Instead, the trial court imposed only the middle terms and made Cuevas’s sentence for assault concurrent, resulting in a total term of 20 years imprisonment.

Cuevas now complains his conduct did not merit “an especially harsh punishment,” and he asserts the 20-year sentence he received could only have resulted from the trial court’s arbitrary decision to sentence the defendants in his group more severely.[5] This argument rests upon two assumptions: that the defendants remained grouped at sentencing, and that the defendants in Group A received longer prison sentences than those in Group B. Both are demonstrably false. First, the defendants were no longer separated into groups at the time of sentencing. On the prosecution’s motion, about three weeks before the defendants entered pleas, the trial court dissolved the previous grouping and consolidated the remaining six cases for trial. Thus, the individual defendants were no longer part of a “group” when they were sentenced. Second, the defendants who had formerly been in Group A did not receive uniformly longer sentences than defendants who had been in Group B. From Group A, Santana was sentenced to 26 years imprisonment, and Hernandez and Cuevas were sentenced to 20-year terms, but Gomez received the lightest sentence of all--only eight years. Of the remaining two defendants in Group B, Mesa received a slightly lower sentence than Cuevas (17 years 8 months), but Delgado received a slightly higher total sentence (21 years).[6]

Considering this range of sentences, and the court’s comments at the sentencing hearing, it is evident that the trial court considered the individual facts pertaining to Cuevas’s case and did not simply rely on Cuevas’s pretrial grouping with other defendants who may have been more culpable. The court remarked that it had watched Cuevas throughout the proceedings and noticed he appeared to be very bright and articulate, with “a great deal to offer,” and the court believed it unfortunate that Cuevas had chosen not to use his talents to productive ends. The court had thoroughly read and considered the presentencing statement prepared by Cuevas’s attorney--indeed, the court criticized it harshly for attempting to characterize Cuevas as a victim--and even quoted passages from some of the exhibits attached to the statement. At the sentencing hearing, the court listened to arguments from counsel, statements from Cuevas’s sister and mother, and an extensive statement from Cuevas himself. The court also heard testimony from Detective Joe Heath, who testified to his impression that Cuevas played a lesser role than some of the other defendants in the fight. However, Detective Heath also testified that Cuevas did not seem “completely willing to divorce himself from the gang life,” and that, in fact, he believed Cuevas was the person who threw the first punch in the fight.

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions. (Pen. Code, § 1203.1, subd. (b); Cal. Rules of Court, rule 414; People v. Warner (1978) 20 Cal.3d 678, 682-683.)” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Numerous aggravating factors support the court’s denial of probation in this case. The crime was particularly vicious, in that victim Rodriguez was stabbed repeatedly and assaulted after he fell to the ground, and the victims were especially vulnerable because they were greatly outnumbered by the assailants. Cuevas had previously engaged in violent conduct, with numerous sustained juvenile petitions, and his prior performance on juvenile probation and parole was unsatisfactory. In fact, he was on CYA parole when he committed the present offenses. “Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation. [Citations.]” (Ibid.) Given the prevalence of aggravating factors, and the near-complete absence of mitigating factors, the trial court did not abuse its discretion in sentencing Cuevas to state prison.

There is no indication the trial court based its sentencing decision on an arbitrary ground instead of these appropriate considerations. In particular, Cuevas can point to no evidence in the appellate record suggesting the trial court intended to sentence some defendants more severely based on their placement in a pretrial grouping, and without reference to their conduct. Lacking such evidence, Cuevas has filed a habeas petition with a declaration from his trial counsel, Constance Burtnett. In this declaration, Burtnett describes her dismay that Cuevas was grouped with defendants who were heavily implicated in the assault, and she relates speculation among various defense attorneys about possible improper influences on the trial judge’s sentencing decisions--such as, for example, a belief the judge would be inclined to sentence the remaining defendants more harshly after the press criticized him for granting probation to some defendants who pled guilty early in the process. Within Ms. Burtnett’s 20-page declaration, the only suggestion that the trial court may have based its sentencing decision on Cuevas’s placement in a pretrial group is counsel’s claim that, during confidential plea negotiations, the prosecutor “said [Cuevas] should really take this deal because Judge Hardcastle had indicated to her that everyone in the ‘A’ group would be going to prison.” Attorney Burtnett’s declaration relating what the prosecutor told her the judge said is double hearsay and not a valid basis for granting habeas relief. (People v. McCarthy (1986) 176 Cal.App.3d 593, 597 [hearsay allegations must be disregarded and do not support a prima facie case for habeas relief].)

Finally, Cuevas accuses the trial judge of misconduct, based on the idea that the pretrial grouping created an appearance of impropriety, and he urges us to reverse and remand the case so that the trial court may explain what role, if any, the grouping played in his sentencing decision. We decline to do so because the claim was not preserved for review. Cuevas raised no objection to the pretrial grouping--indeed, he was the one who requested severance of the cases--and did not object to alleged judicial misconduct at the sentencing stage. A “ ‘[d]efendant’s failure to object at trial . . . particularly where (as here) such action would have permitted the court to clarify any possible misunderstanding . . ., bars his claim of error on appeal.’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th 475, 531.) Moreover, the claim fails on the merits because, as discussed, no evidence supports Cuevas’s speculation that the trial court’s sentencing decision was influenced by any arbitrary consideration about the defendants’ earlier grouping.

DISPOSITION

The judgment is affirmed, and Cuevas’s petition for writ of habeas corpus is denied.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] People v. Delgado (Oct. 19, 2006, A108852), People v. Gomez (Oct. 19, 2006, A110353), People v. Hernandez (Oct. 19, 2006, A109214) and People v. Mesa (Oct. 19, 2006, A109157).

[2] All statutory references are to the Penal Code.

[3] In light of Cuevas’s plea, our recitation of facts derives from the probation report. (See People v. Barasa (2002) 103 Cal.App.4th 287, 290, fn. 1.)

[4] An additional enhancement to count I was alleged against Santana only for weapons use. (§ 12022, subd. (b)(1).)

[5] Cuevas does not appear to object to the original grouping of the defendants. Any such claim would be waived on appeal because the cases were severed into groups upon his own motion. In addition, although Cuevas’s trial counsel expressed displeasure at the sentencing hearing about the defendants’ lack of input as to the groups they were placed in, at no time did Cuevas object to his placement in Group A. In any event, severance lies within the sound discretion of the trial court, and the court may group defendants according to nature of the evidence against them. (People v. Boyde (1988) 46 Cal.3d 212, 232; People v. Kelly (1986) 183 Cal.App.3d 1235, 1240-1241.)

[6] Delgado actually received the same 20-year sentence as Cuevas for the gang-beating charges, but he was sentenced to an additional year of prison for violating probation on a separate assault charge.