Filed 3/28/18 P. v. Reyes CA4/3
(opinion following rehearing)






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JAIME NELSON REYES,

Defendant and Appellant.

G053096

(Super. Ct. No. 14CF3955)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed in part, reversed in part, modified and remanded.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jaime Nelson Reyes of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a) [count 1]; all statutory citations are to the Penal Code), assault with a deadly weapon or instrument (§ 245, subd. (a)(1) [count 2]), kidnapping (§ 207, subd. (a) [count 3]), and disobeying a court order (§ 166, subd. (a)(4) [counts 6 and 7]). The jury found he personally used or discharged a firearm in committing several of the offenses. (See §§ 12022.5, 12022.53.) Reyes contends there is insufficient evidence he committed assault with a deadly weapon or instrument, and one of his misdemeanor convictions violated the statute of limitations. We accept the Attorney General’s concession the conviction for disobeying a court order (count 6) committed in October 2013 violated the statute of limitations. We also conclude insufficient evidence supports the assault with a deadly weapon conviction, and therefore modify the conviction to simple assault. We will remand for resentencing. On remand, the court shall also exercise its discretion (§§ 12022.53, subd. (h), 122022.5, subd. (c)) to determine whether it should strike or dismiss the firearm enhancement (§§ 12022.53, 12022.5) otherwise required to be imposed for attempted premeditated murder (count 1) and kidnapping (count 3).
I
FACTUAL AND PROCEDURAL BACKGROUND
Pedro B. and D.M. are married, and the couple have a teenage daughter, Jazmine. Reyes worked with D.M., and at some point he and D.M. began seeing each other socially. In early 2013, D.M. separated from Pedro and temporarily moved out of the family residence. D.M. eventually returned to live with Pedro, but she continued going out with Reyes.
In August 2013, Pedro told D.M. to obtain a restraining order against Reyes after he paid an unwelcome visit to Pedro’s home. On August 9, 2013, the family obtained a restraining order prohibiting Reyes from coming within 100 yards of the residence or contacting family members.
Despite the restraining order, D.M. continued meeting with Reyes. Reyes parked near the family’s residence on several occasions, including on October 27, 2013 and May 16, 2014. D.M. claimed she told Reyes to stop following her around and to leave her alone. Reyes once told D.M. if she “wasn’t his, [she] wouldn’t be with anyone.”
Around 4:45 a.m. on the morning of December 5, 2014, Pedro opened the driveway gate and pulled his truck and trailer out as he prepared to leave for work. When he walked back to close the gate, Reyes approached from behind the neighbor’s fence holding a gun in his right hand.
Reyes called Pedro a “son of a bitch,” and ordered him, at gunpoint, to walk through the gate and into the backyard. Pedro walked backward into his yard as Reyes followed, waving the gun back and forth. As they walked toward the back, Reyes struck Pedro three times, the final time with a “hard object” that grazed his lip.
When the men stood outside the patio door leading into the kitchen, Reyes told Pedro to open the door. Pedro claimed he did not have the key, and knocked on the door as he stood on the doorway steps. When he heard someone’s footsteps inside the house, he lunged at Reyes. Pedro heard three gunshots as he grabbed Reyes by the head and dragged him toward a patio sofa. He held Reyes in a chokehold, placed his right hand on the gun in Reyes’s hand, pulled the trigger to make sure there were no more unfired rounds, and wrestled the gun away from Reyes. When D.M. and Jazmine emerged from the house, Pedro yelled at them to call the police and to go inside. Pedro struck Reyes on the head with the gun several times and the men fell to the ground. Pedro picked Reyes up, pushed him against the wall, and held Reyes until police officers arrived.
A crime scene investigator located various items in and around the patio area, including a .22-caliber handgun, a gasoline can inside a plastic grocery bag, a book of matches, an ammunition magazine, two spent shell casings, a hammer, and a black vest. She also documented two bullet strike marks on the stucco wall adjacent to the kitchen door, and recovered a bullet fragment from the wall.
Reyes testified he sought to speak with Pedro to “clear up the situation” with D.M., explaining he loved D.M. and felt if he “lost her, [he] would lose [his] life.” He carried the pistol in his pocket because he felt his life was in danger from Pedro. He brought the gasoline can to immolate himself if D.M. rejected him. He approached Pedro in the driveway and told Pedro he wanted to speak with him “man to man.” When Pedro called him a “poor dog” and a “loser,” Reyes became infuriated and hit Pedro with his hand two or three times. He denied having his gun out, or using the hammer. The men fought and the gun fell out of Reyes’s pocket. Pedro lunged for the gun, put his hands on it, and fired it two or three times. Eventually, Pedro pushed Reyes onto the sofa, and Pedro struck him twice with the hammer, fracturing his nose. A police officer ordered Pedro to drop the gun.
Following trial in November 2015, a jury convicted Reyes as noted above. In January 2016, the court imposed a term of life with possibility of parole for attempted premeditated murder (§ 664, subd. (a)) and a consecutive 20-year term for personal discharge of a firearm (§ 12022.53, subd. (c)). The court stayed (§ 654) terms for the other felony offenses and enhancements, and suspended sentence on the misdemeanors. The court imposed various fines and fees and reserved jurisdiction to award victim restitution.
II
DISCUSSION
A. Substantial Evidence Does Not Support the Conviction for Assault with a Deadly Weapon or Instrument
Reyes contends there is insufficient evidence he assaulted Pedro with a deadly weapon or instrument as charged. The information (count 2) alleged Reyes committed assault against Pedro “with a deadly weapon and instrument, HAMMER.” (§ 245, subd. (a)(1).) It also alleged as an enhancement he “personally used a firearm in the commission . . . of the [] offense.”
The due process clause of the Fourteenth Amendment guarantees “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof–defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” (Jackson v. Virginia (1979) 443 U.S. 307, 316.) On appeal we consider whether the jury’s conclusion is supported by substantial evidence, “not whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Sufficient evidence is shown when the evidence is substantial, “which has been defined as evidence that ‘reasonably inspires confidence and is of “solid value.”’” (People v. Morris (1988) 46 Cal.3d 1, 19 (Morris) disapproved on another ground in People v. Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.) A reviewing court must accept logical inferences the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . mere speculation as to probabilities without evidence.’ (Citations.]” (Morris, at p. 21.)
Section 245, subdivision (a)(1), prohibits the commission of “an assault upon the person of another with a deadly weapon or instrument other than a firearm.” (Italics added.) Some objects, like dirks and blackjacks, are deemed deadly weapons as a matter of law. The jury may find other objects to be “deadly instruments” when the object is used in a manner and under circumstances indicating a likelihood of producing death or great bodily injury. “In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [bare hands or feet cannot be deadly weapons within meaning of assault statute]; People v. Russell (1943) 59 Cal.App.2d 660, 665 [relevant factors in determining whether object qualifies as a deadly weapon include nature of the object, the manner of its use, the location of the injuries inflicted, and the extent of injuries].)
People v. Beasley (2003) 105 Cal.App.4th 1078, guides our analysis. There, the defendant was charged under section 245, subdivision (a), with using a broomstick and vacuum cleaner attachment to strike the victim. The victim testified the defendant struck her with the objects, bruising her arms and shoulders. (Id. at pp. 1085-1086.) The appellate court found that while a “sufficiently strong and/or heavy broomstick might be wielded in a manner capable of producing, and likely to produce, great bodily injury, e.g., forcefully striking a small child or a frail adult or any person’s face or head,” the victim’s testimony “was far too cursory to establish that the broomstick . . . was capable of causing, and likely to cause, great bodily injury or death. [The defendant] did not strike her head or face with the stick, but instead used it only on her arms and shoulders. [The victim] did not describe the degree of force [the defendant] used in hitting her with the stick, and neither the stick itself nor photographs of it were introduced in evidence. The record does not indicate whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic. Its composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury.” (Id. at pp. 1087-1088.) The court also noted “[s]triking an adult’s shoulder and back with a hollow plastic instrument is not likely to produce significant or substantial injury.” (Id. at p. 1088.) Finally, the court stated the evidence did not disclose severe injuries suggesting the objects were wielded in a manner capable of producing, and likely to produce, great bodily injury.
Here, Pedro testified Reyes struck him three times as he walked from the gate to the back. While pointing the gun at Pedro with his right hand, Reyes used his left hand to strike the first two blows, and then delivered a glancing blow to Pedro’s lip with “something hard.” Pedro testified he did not see the object, explaining he initially “thought it was a hammer but then I found out that it wasn’t a hammer.” Pedro did not see how Reyes acquired the object because it was “very dark.” The first two blows split his lip, but the third only grazed him. Pedro demonstrated how Reyes used the object, which the court described as a “swinging around arcing motion.” A photographic exhibit depicts Pedro’s swollen and bleeding lips.
Reyes testified he struck Pedro with his hand two or three times after Pedro called him a “poor dog” and a “loser.” Pedro testified he did not have the gun out, and he denied using the hammer. At some point when they were on the ground, Pedro hit Reyes with the hammer, fracturing his nose. As noted, the crime scene investigator located a hammer at the scene.
Thus, both Pedro and Reyes denied Reyes used the hammer to wield the glancing blow. The evidence therefore is insufficient to support the aggravated assault conviction on the theory the hammer was the deadly instrument. (People v. Ramon (2009) 175 Cal.App.4th 843, 851 [reasonable inference may not be based on suspicion, imagination, speculation, supposition, surmise, conjecture, or guess work].) While a person might wield a “hard object” – such as a hammer or rock – at someone’s head in a manner likely to produce great bodily injury or death, Pedro’s testimony was too inconclusive to establish he used the hammer to strike Pedro. Indeed, the evidence is less compelling than the evidence the Beasley court found to be insufficient. No witness identified the “hard object” used by Reyes, and the grazing or glancing strike did not inflict significant injuries. Evidence Reyes “grazed” Pedro’s lip with an unidentified hard object that left no significant injuries is insufficient to prove an assault with a deadly weapon or instrument.
Reyes agrees the evidence supports a conviction for the lesser included offense of simple assault (§ 240), and therefore we will modify the judgment accordingly. We also reverse the firearm use enhancement because it is predicated on a felony conviction. (§ 12022.5, subd. (a) [person who personally uses a firearm in the commission of a felony or attempted felony punishable by an additional and consecutive term of imprisonment of 3, 4, or 10 years unless use of a firearm is an element of that offense].)
B. Statute of Limitations Requires Reversal of Count 6
The jury convicted Reyes of misdemeanor violation of a court order occurring on October 27, 2013. (§ 166, subd. (a)(4) [count 6].) The prosecution first charged this offense in an amended complaint filed January 12, 2015. A misdemeanor prosecution must generally “be commenced within one year after commission of the offense.” (§ 802, subd. (a).) A defendant may assert the statute of limitations at any time. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) The Attorney General concedes we must reverse count 6. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1310.) We accept the concession and will reverse the conviction.
C. Petition for Rehearing – Senate Bill No. 620
Reyes filed a petition for rehearing and sought leave to file a supplemental brief addressing Senate Bill No. 620, which became effective on January 1, 2018. We granted rehearing and leave to file the supplemental brief, and invited the Attorney General to respond.
At the time of Reyes’s crime and sentencing, section 12022.53 imposed a mandatory additional and consecutive prison term of 20 years for personally and intentionally discharging a firearm during the commission of certain enumerated felonies, including attempted murder. (Former § 12022.53, subds. (a), (c).) On October 11, 2017, the Governor approved Senate Bill No. 620, which amended section 12022.53 effective January 1, 2018. Under the amendment, a trial court now has discretion to strike or dismiss a firearm enhancement. (§ 12022.53, subd. (h) [“The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section”].) The statute expressly applies this authority “to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).)
The Attorney General does not dispute the amendment applies to this case. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678 [section 12022.53, subdivision (h), applies where defendant’s case not final at the time the subdivision became effective; Attorney General concedes remand appropriate].) But he maintains a remand would be futile because there is no reasonable probability the trial court would strike the enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand due to ameliorative change in law not required where trial court’s comments at sentencing and sentence itself show court would not exercise its discretion to lessen sentence].)
The Attorney General argues “[t]he trial court’s comment about the heinousness of appellant’s crimes make clear that the court would not have stricken the firearm enhancements if it had discretion to do so. It found that but for victim Pedro B.’s heroic efforts in resisting and wrestling the gun away from appellant, he could have committed a triple homicide and shot the victim, his wife D.M. (whom appellant said that if she ‘wasn’t his, [she] wouldn’t be with anyone’) and daughter Jasmine. As a result, ‘[u]nder the circumstances, no purpose would be served in remanding for reconsideration.’”
We decline to speculate on whether the trial court would have declined to strike the 20-year firearm enhancement had it possessed discretion to do so. Notably, the court stated it was impressed by Reyes’s “life story” as an immigrant, and took “into account . . . the remorse” Reyes had expressed, remarking “I’m sure it’s genuine.” The court remarked “it’s a shame that one tragic event has ruined such a wonderful life you’ve had.” The court observed it had two sentencing choices, one it viewed as too harsh and the other as too lenient, and lamented there was “not necessarily much discretion in the middle.” The court noted the jury found true three firearm enhancements associated with attempted premeditated murder as charged in count 1. Section 12022.53, subdivision (c), requires an additional and consecutive term of imprisonment of 20 years, section 12022.53, subdivision (b), provides for an additional term of 10 years, and section 12022.5, subdivision (a), provides for a term of three, four or 10 years. But the court stated it “has to go with the one enhancement that carries the largest exposure,” but the court again regretted the stark choices it faced and wished “it had a little more wiggle room because it’s really – the court is left with either sentencing you to an additional 20 years consecutive or sentencing you to those 20 years concurrent.[ ]”
Thus, the court felt a consecutive 20-year term was extreme, but believed it had “to go with the one enhancement that carries the largest exposure.” It is entirely conceivable the court on remand might strike the 20-year enhancement in favor of imposing punishment on a lesser enhancement. Reyes received a determinate life term for his primary offense of attempted premeditated murder, and the evidence construed in a light most favorable to the jury’s verdict disclosed mitigating circumstances the court might well consider in exercising its discretion to strike the enhancement. (See Cal. Rules of Court, rules 4.428, 4.423 [crime committed because of unusual circumstance unlikely to recur, insignificant record of criminal contact, defendant suffering from mental condition significantly reducing culpability].) We will remand to allow the court to exercise discretion.
D. Failure to Impose a Term for Kidnapping
The trial court imposed an unauthorized sentence by staying sentencing (§ 654) for kidnapping (§ 207, subd. (a) [count 3]) without imposing a term. (People v. Alford (2010) 180 Cal.App.4th 1463, 1467; § 208 [kidnapping is punishable by imprisonment for “three, five, or eight years”].) The court can correct this error on remand.
III
DISPOSITION
We modify (§ 1260) the conviction for assault with a deadly weapon (§ 245, subd. (a)(1) [count 2]) to the lesser included offense of misdemeanor assault (§ 240). The firearm use enhancement associated with count 2 (§ 12022.5, subd. (a)) is reversed and the court is directed to dismiss the allegation. The conviction for violating a court order (§ 166, subd. (a)(4)) as charged in count 6 is reversed and the court is directed to dismiss the charge. The matter is remanded to the trial court for resentencing. The court shall exercise its discretion at resentencing to determine whether to strike or dismiss the firearm enhancements associated with counts 1 and 3. Following resentencing, the trial court shall forward an amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.



ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.