Opinion
H048986
08-16-2023
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO MADRIGAL CERVANTES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1775222)
Greenwood, P. J.
A jury convicted Guillermo Madrigal Cervantes of involuntary manslaughter, in violation of Penal Code section 192, subdivision (b), and witness dissuasion, in violation of section 136.1, subdivision (b)(2), in connection with a homicide that occurred at the Sky Restaurant and Bar in San Jose. The jury found true the allegations that the act of dissuasion was committed with use of force upon a person and in furtherance of a conspiracy, pursuant to section 136.1, subdivisions (c)(1) and (c)(2). After Cervantes was convicted but before he was sentenced, a jury found him guilty in a separate case of first degree murder and conspiracy to commit first degree murder (the murder case), for which he received life imprisonment without the possibility of parole consecutive to 25 years to life. After Cervantes was sentenced in the murder case, the trial court in the Sky Restaurant case sentenced him to a middle term of three years for manslaughter and a concurrent three-year term for witness dissuasion. Because Cervantes had already been convicted of murder at the time of his sentencing, the trial court applied section 2933.2, subdivision (c) to deny him presentence conduct credits for the period he had served in custody not only for the murder case but also for charges attributable to this case only. The trial court imposed and stayed a criminal justice administration fee.
All statutory references are to the Penal Code, unless otherwise indicated.
For clarity, we refer to the case before us on appeal as "the Sky Restaurant case," and the separately charged murder case as "the murder case."
On appeal, Cervantes argues that there is insufficient evidence to support his conviction for witness dissuasion, and that the trial court erred in failing to instruct the jury on voluntary intoxication. In connection with his sentence, Cervantes contends that the trial court misapplied section 654 when it imposed concurrent terms for his manslaughter and witness dissuasion convictions, and that it wrongly denied him presentence conduct credits. Cervantes contends that the matter must be remanded for resentencing in light of Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5.3), and that we must vacate the criminal justice administration fee and order the abstract of judgment modified to accurately reflect the charges for which he was convicted.
We conclude that there is insufficient evidence to support Cervantes's conviction for witness dissuasion, and reverse. Accordingly, we need not reach Cervantes's instructional error or section 654 claims. We conclude that the trial court correctly applied section 2933.2, subdivision (c) to deny Cervantes presentence conduct credit for the period he served in custody in this case, but we accept the Attorney General's concession and remand the matter for resentencing pursuant to Assembly Bill No. 124. We vacate the criminal justice administration fee. Finally, though we agree with the parties that the abstract of judgment contains clerical errors, we need not order its modification at this time in light of our decision to remand the matter for resentencing.
I. Factual and Procedural Background
A. Relevant Facts - Sky Restaurant Case
The charges in the instant case arose out of an incident outside the Sky Restaurant and Bar on June 22, 2017. Cervantes and his codefendants, Raymond Reynoza and Cesar Chavez, confronted Rafael Cornejo outside the bar. During the confrontation, one of the men in Cervantes's group said, "drop the charges" and "we don't fuck with snitches." Cervantes subsequently punched Cornejo. Cornejo fell to the ground and struck his head on the pavement, and later died. The medical examiner opined at trial that the cause of Cornejo's death was blunt force injury to the head combined with acute alcohol intoxication.
At trial, the prosecution's theory of the case was that at the time of the homicide, Cervantes and his codefendants were attempting to "prevent or discourage" Cornejo from assisting in the prosecution of a firearms case filed in February 2017, involving Cornejo, Benjamin Valladares, and Reynoza's brother, Francisco Rosales. In the firearms case, the police arrested Cornejo, Valladares, and Rosales after finding an unregistered firearm in their car. The three men were charged with misdemeanor possession of a firearm, and Valladares was additionally charged with felony assault with a firearm and causing a firearm to be carried inside a vehicle. The men made several court appearances in the firearms case between April and June 2017. During a June 15, 2017 court appearance, Cesar Chavez (Cervantes's codefendant in this case) and Chavez's brother Gilbert accompanied Rosales to court, even though neither Cesar nor Gilbert Chavez had a required court appearance that day.
While Cornejo himself was a defendant in the firearm case, the prosecution argued to the jury that Cornejo was a witness, and that Cervantes and his codefendants confronted Cornejo outside the restaurant just one week after the most recent court appearance in the firearms case, with the intent to silence Cornejo for the benefit of Rosales.
B. Procedural History
1. The Charges and Trial - Sky Restaurant Case
In November 2017, the Santa Clara County District Attorney filed an information charging Cervantes, Reynoza and Chavez with murder (count 1), dissuading or attempting to dissuade a witness by use or threat of force (count 2), and witness dissuasion with act done in furtherance of a conspiracy (count 3). (§§ 187, 136.1, subds. (c)(1) &(c)(2).) Cervantes was additionally charged with possession of an assault weapon with a gang enhancement (count 4) and child endangerment (count 5). (§§ 30605, subd. (a), 186.22, subd. (b)(1)(A), 273a, subd. (a).) The latter charges were added after police found an assault rifle at Cervantes's home during a search warrant. Prior to trial, the court granted Cervantes's motion to dismiss the gang enhancement associated with count 4. Cervantes later pled guilty to that count in exchange for dismissal of the child endangerment charge (count 5).
Jury trial commenced as to all three defendants in January 2018. At the close of the prosecution's case, the trial court granted the district attorney's motion to amend count 2 to allege a violation of section 136.1, subdivision (b)(2) (witness dissuasion), with the allegations that the act was committed with use of force upon a person and in furtherance of a conspiracy. (§ 136.1, subds. (c)(1) &(c)(2).) The prosecutor dismissed count 3 in light of the amendments.
The jury acquitted Cervantes of murder but convicted him of involuntary manslaughter, pursuant to section 192, subdivision (b). The jury convicted Cervantes of witness dissuasion, pursuant to section 136.1, subdivision (b)(2), and found true the allegations that Cervantes had committed the act with force and in furtherance of a conspiracy. The jury convicted Reynoza of witness dissuasion and found true the allegation that he had committed the act in furtherance of a conspiracy. The jury acquitted Chavez of all charges.
We reversed codefendant Reynoza's conviction for witness dissuasion pursuant to section 136.1, subdivision (b)(2) in People v. Reynoza (2022) 75 Cal.App.5th 181 (Reynoza), review granted May 11, 2022, No. S273797.
2. Cervantes's Conviction and Life Sentence - Murder Case (Case No. C1897470)
Cervantes was arrested in the Sky Restaurant case on October 11, 2017 and remained in custody through his sentencing. While in custody, Cervantes was arrested on separate and unrelated murder and conspiracy charges in case number C1897470, which the district attorney dismissed and subsequently refiled. The charges filed in case number C1897470 arose out of a different incident and involved a different victim than the one here. In September 2020, a jury convicted Cervantes of first degree murder and conspiracy to commit first degree murder. On December 15, 2020, the trial court sentenced Cervantes to life without the possibility of parole consecutive to 25 years to life.
Cervantes's appeal from the murder case is presently pending in this court, under case number H048890. Both parties have requested that we take judicial notice of the sentence the trial court imposed in the action underlying that appeal. We grant the parties' request and take judicial notice of Cervantes's sentence as reflected in the record in the appeal in case number H048890.
3. Cervantes's Sentence - Sky Restaurant Case
In January 2021, after Cervantes was sentenced in the murder case, the trial court in the Sky Restaurant case sentenced Cervantes to a three-year term for involuntary manslaughter, a concurrent three-year term for witness dissuasion, and a consecutive eight-month term for possession of an assault weapon, for a total of three years, eight months, in prison. The trial court awarded Cervantes 216 days of credit for actual days served in custody, but in light of the aforementioned murder conviction in case number C1897470, declined to award him conduct credit pursuant to section 2933.2, subdivision (c).
Cervantes filed a timely notice of appeal from the judgment.
II. Discussion
A. Standard of Review
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or circumstances beyond a reasonable doubt. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357, italics omitted.) The record must "disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (Reynoza, supra, 75 Cal.App.5th at p. 186.) "The substantial evidence must be reasonable, credible, and of solid value." (Ibid.) "We review the evidence 'in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' [Citation.]" (Ibid.)
We review issues of statutory interpretation de novo. (People v. Brewer (2011) 192 Cal.App.4th 457, 461.) We review a trial court's sentencing decisions for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
B. Insufficient Evidence to Support Cervantes's Conviction for Witness Dissuasion
On appeal, Cervantes argues that there is insufficient evidence to support his conviction for witness dissuasion under section 136.1, subdivision (b)(2). Section 136.1, subdivision (b)(2) prohibits "attempts to prevent or dissuade another person . . . who is a witness to a crime from . . . [c]ausing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof." (§ 136.1, subd. (b)(2).) Relying on our decision in Reynoza, Cervantes argues that an essential element of this offense requires evidence that he attempted to prevent or dissuade Cornejo from causing a charging document to be filed. Because a complaint had already been filed in the firearm case in which the prosecution contended that Cornejo was a witness, and because there was no evidence that Cervantes attempted to dissuade Cornejo from assisting in the filing of an amended complaint, Cervantes contends that there is insufficient evidence to prove that he is guilty of this offense.
We examined this issue in Reynoza and there held that section 136.1, subdivision (b)(2) "requires proof that . . . the defendant attempted to prevent or dissuade another person from causing a complaint . . . to be filed." (Reynoza, supra, 75 Cal.App.5th at p. 189.) "If the defendant was aware the relevant charging document had already been filed, and the defendant did not attempt to prevent or dissuade the filing of any amended or subsequent charging document, the defendant has not violated section 136.1(b)(2)." (Ibid.) In Reynoza, the charging document was filed before the alleged dissuasion occurred and the evidence presented at trial tended to show the defendant was aware of the filed complaint. (Ibid.) There was also no evidence that the defendant attempted to prevent or dissuade the witness from causing an amended complaint to be filed. (Ibid.) Under those circumstances, we concluded that there was insufficient evidence to support the defendant's conviction for witness dissuasion. (Id. at p. 190).
The facts here are the same as those presented in Reynoza, as Cervantes was Reynoza's codefendant below and the two men were tried together in a joint trial. (See Reynoza, supra, 75 Cal.App.5th at pp. 184-185.) As with Reynoza, the charged conduct against Cervantes occurred months after the complaint had been filed in the firearm case in which Cornejo was a witness and after all parties to that action had made multiple court appearances. There was no evidence that Cervantes was unaware the complaint had been filed. Indeed, as with Reynoza, the evidence at trial tended to show that Cervantes was aware both of the complaint and of Cornejo's court appearances in connection with the filed action. Nor was there evidence tending to show that an amended complaint in the firearm case was forthcoming or that Cervantes intended to dissuade Cornejo from causing an amended document to be filed. Under these facts, we conclude, as we did in Reynoza, that there is insufficient evidence to sustain Cervantes's conviction for section 136.1, subdivision (b)(2), and accordingly, reverse the conviction.
Because we reverse Cervantes's conviction under section 136.1, subdivision (b)(2) for insufficient evidence, we do not reach his argument that the trial court prejudicially erred in denying his request to instruct the jury on voluntary intoxication in connection with that offense. For the same reason, we do not reach Cervantes's argument that the trial court erred by failing to stay his sentence for witness dissuasion pursuant to section 654.
C. Conduct Credits Under Section 2933.2, Subdivision (c)
Although we remand the matter for resentencing, we address this fully briefed issue of statutory construction to assist the trial court at Cervantes's resentencing, and as a matter of judicial economy.
Cervantes raises several arguments relating to the sentence the trial court imposed in his case. Specifically, Cervantes contends that the trial court erred by denying him 216 days of presentence conduct credit pursuant to section 2933.2, subdivision (c). Cervantes does not claim he is entitled to conduct credit for the periods between January 5, 2018, through April 13, 2018, or from August 22, 2018 on, because he was in custody for the murder charge in case number C1897470 during those periods of time. Cervantes contends, however, that he is entitled to 216 days of conduct credit for the period between October 11, 2017, and January 4, 2018 (prior to his arrest on the murder charges), and between April 14 and August 21, 2018 (during the window of time when the murder charges were dismissed). We conclude that section 2933.2, subdivision (c) applies to all presentence custody periods served by a defendant who is eventually convicted of murder, even if that time preceded the murder charges being filed. Accordingly, we hold that the trial court correctly applied section 2933.2 in calculating Cervantes's conduct credits.
"In addition to actual credit, which accumulates from time spent in custody, detainees in local institutions are usually able to earn credit against their eventual sentence for good behavior and work performed." (People v. Brown (2020) 52 Cal.App.5th 899, 902-903 (Brown).) Those credits, called "conduct credits," are authorized under section 4019. Section 2933.1, subdivision (c) restricts presentence conduct credits to no more than 15 percent for defendants convicted of a violent felony pursuant to section 667.5. (§ 2933.1, subds. (a) &(c).) Section 2933.2, subdivision (c), contains language parallel to that in section 2933.1 but eliminates presentence conduct credits altogether for defendants convicted of murder. (Brown, at p. 903.) Section 2933.2 provides, in relevant part, "Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail . . . following arrest for any person [who is convicted of murder, as defined in Section 187]." (§ 2933.2, subds. (a) & (c).)
People v. Ramos (1996) 50 Cal.App.4th 810 (Ramos) sets forth the baseline rule for awarding presentence conduct credit in cases involving section 2933.1, and by extension, section 2933.2. In Ramos, the court held that "by its terms, section 2933.1 applies to the offender not to the offense and so limits a violent felon's conduct credits irrespective of whether or not all his or her offenses come within section 667.5 ." (Id. at p. 817, italics added.) People v. Marichalar (2003) 144 Cal.App.4th 1331 (Marichalar) and People v. Baker (2002) 144 Cal.App.4th 1320 (Baker) applied Ramos's rule to circumstances similar to the one here, where the defendant served presentence custody time on a section 4019-eligible offense prior to being convicted of a violent felony. In Marichalar, the defendant was charged first with possession of narcotics for sale and then with kidnapping, the latter being a violent felony within section 2933.1. (Marichalar, at pp. 1333-1334.) When sentencing on the offenses, the trial court applied section 2933.1's 15 percent limitation to all of defendant's presentence custody credits, including the custody term attributable solely to his narcotics charge. (Id. at p. 1334.) The appellate court affirmed based on Ramos, holding that because the statute applied to the offender and not the offense, "[t]hat a defendant, currently convicted of a violent felony, was not a violent felon at the time he served his or her presentence custody on the nonviolent offense is irrelevant." (Id. at p. 1337.)
In In re Reeves (2005) 35 Cal.4th 765, 774, our Supreme Court recognized that "All other published decisions addressing the same issue about presentence credits have followed Ramos. [Citations.]"
Similarly, in Baker, the defendant was charged with and convicted of assault, a violent felony, after spending several months in custody for unlawful possession of a firearm. (Baker, supra, 144 Cal.App.4th at pp. 1325-1326.) When he was sentenced, the trial court applied section 2933.1's 15 percent limitation to all his presentence credits, including credits for the time he spent solely on the firearm offense. (Id. at p. 1326.) Relying on Ramos, the Court of Appeal affirmed, concluding that section 2933.1, subdivision (c) applies to all presentence custody periods served by a defendant who is eventually convicted of a violent felony without regard to "the timing of each conviction," "even if the presentence custody time on the nonviolent offense was served prior to the commission of the violent offense." (Id. at pp. 1324, 1327.)
Recently, Brown extended Ramos's rationale to section 2933.2, subdivision (c). In Brown, the defendant pled guilty to cocaine possession and received a prison term. One year into that term, he was convicted of murder. While sentencing on the murder charge, the trial court also resentenced the defendant on the cocaine possession charge and applied section 2933.2 to deny him presentence conduct credits for the custody time he had served solely for that offense, on the basis that he was now convicted of murder. (Brown, supra, 52 Cal.App.5th at p. 902.) The defendant appealed, arguing that he should have received conduct credits for the time he spent in custody on the possession charge prior to being charged with murder. (Ibid.) The Court of Appeal rejected this argument. While recognizing that "there is some support in the statutory language for [the defendant's] position that section 2933.2, subdivision (c) does not reach the earlier custody period attributable only to his cocaine possession offense," the court concluded that this argument was "built on the untenable premise" that the Supreme Court had disapproved of Baker and Marichalar in Reeves, which it had not. (Id. at p. 909.) "Respecting our role as an intermediate appellate court, we believe the appropriate course is to follow existing precedent as reflected in [Baker] and [Marichalar], leaving it to the Supreme Court to reexamine those decisions if it now believes they were in error." (Id. at p. 909.) The court in Brown thus affirmed the trial court's application of section 2933.2 to all of the defendant's presentence credits, including credits for the period attributable solely to his cocaine possession charge. (Ibid.)
As in Brown, Marichalar, and Baker, Cervantes argues that section 2933.2, subdivision (c) does not preclude him from earning presentence conduct credits for the time he served before his arrest for the murder charges in case number C1897470. He further contends that the provision does not preclude him from earning conduct credits for the window of time when the murder charges in case number C1897470 were dismissed. But section 2933.2, subdivision (c), like section 2933.1, applies "to the offender not the offense." (Ramos, supra, 50 Cal.App.4th at p. 817.) Thus, the dispositive issue is not whether Cervantes had served time that is solely attributable to the offenses charged in this case, but rather, whether Cervantes was eventually convicted of murder. He was. Thus, under the rationale of Ramos and Brown, the limitation of section 2933.2, subdivision (c) applies to all his presentence custody credits, including credits for the period attributable solely to the offenses charged in this case.
The trial court did not err in the calculation of presentence conduct credits pursuant to section 2933.2.
D. Remand for Resentencing Under Section 1170, Subdivision (b)(6) (Assembly Bill No. 124)
Cervantes next argues that he is entitled to be resentenced under Assembly Bill No. 124. The Attorney General concedes that Assembly Bill No. 124 applies retroactively to Cervantes, and that he is entitled to be resentenced under this provision. The Attorney General's concession is well-taken.
Effective January 1, 2022, Assembly Bill No. 124 amended section 1170, subdivision (b), which now provides in subdivision (b)(6), "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] (A) the person has experienced psychological, physical, or childhood trauma .... [¶] (B) The person is a youth, or was a youth . . . at the time of commission of the offense." (§ 1170, subdivision (b)(6).) Section 1016.7, subdivision (b) defines "youth" as "any person under 26 years of age on the date the offense was committed." (§ 1016.7, subd. (b).)
We agree that Cervantes is entitled to the retroactive application of the ameliorative changes effected by Assembly Bill No. 124. (People v. Garcia (2022) 76 Cal.App.5th 887, 902-903 [changes effected by Assembly Bill No. 124 apply retroactively to defendant's case "as they are ameliorative in nature and therefore apply to all nonfinal appeals"]; People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [amended section 1170, subdivision (b) applies retroactively "as an ameliorative change in the law applicable to all nonfinal convictions on appeal"].) Accordingly, we vacate Cervantes's sentence and remand for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893.) We express no opinion as to whether, on remand, the court should find that Cervantes suffered from any of the enumerated circumstances set forth in section 1170, subdivision (b)(6), or whether such circumstances were a "contributing factor" to his commission of the underlying offense. (§ 1170, subd. (b)(6).)
E. The Criminal Justice Administration Fee Must be Vacated
Cervantes next argues that we must vacate the criminal justice administration fee that the trial court imposed and stayed at the time of sentencing. The Attorney General concedes that the fee must be vacated in light of Assembly Bill No. 1869, which rendered "unenforceable and uncollectible" any unpaid portion of certain enumerated fees, including the criminal justice administration fee, as of July 1, 2021. (§ 1465.9, subd. (a).) The provision further requires "any portion of a judgment" imposing such fees to be vacated. (Gov. Code, § 6111, subd. (a).) We accept the Attorney General's concession and direct the trial court, on remand, to vacate any portion of the criminal justice administration fee that remained unpaid as of July 1, 2021. (See People v. Greenley (2021) 70 Cal.App.5th 609, 626-627.)
Cervantes also asks us to modify the abstract of judgment to accurately reflect the charge to which the conspiracy allegation attached. The Attorney General joins in this request. We agree with the parties that the abstract of judgment is inaccurate because it indicates that the conspiracy allegation was attached to count 4 (possession of an assault weapon), as opposed to count 2 (witness dissuasion). However, we need not order the requested modification at this time given our decision to remand the matter for resentencing.
III. Disposition
The conviction for count two, witness dissuasion, is reversed for insufficiency of the evidence. The sentence is vacated and the matter is remanded for resentencing under current sentencing law. (Pen. Code, § 1170.) When resentencing Cervantes on the remaining charges, the trial court may apply Penal Code section 2933.2, subdivision (c), to limit Cervantes's presentence conduct credit based on Cervantes's murder conviction in case number C1897470. That portion of the criminal justice administration fee that remained unpaid on July 1, 2021, is vacated.
WE CONCUR: Bamattre-Manoukian, J., Lie, J.