Opinion
E070521
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. JUAN FRANCISCO INZUNZA, Defendant and Appellant.
Michelle C. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Allison Acosta, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1401659) OPINION APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed with directions. Michelle C. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Allison Acosta, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Juan Francisco Inzunza, pled guilty to resisting arrest. (Pen. Code, § 148, subd. (a)(1); count 3.) A jury thereafter convicted defendant of murder (§ 187, subd. (a); count 1) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 2). The court then found true an allegation defendant had suffered a prior strike conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The court sentenced defendant to an aggregate term of imprisonment of 30 years to life, consisting of the following: 15 years to life on the murder offense, doubled pursuant to the strike prior; one-year concurrent on the count 2 offense; and one-year concurrent on the count 3 offense.
All further statutory references are to the Penal Code.
The abstract of judgment does not reflect the court's imposition of punishment on the counts 2 and 3 convictions. We shall order the court to correct the abstract of judgment to reflect the sentence the court imposed.
On appeal, defendant contends insufficient evidence supports the court's true finding on the prior strike conviction enhancement. We affirm.
I. FACTUAL BACKGROUND
Defendant had been renting a room from the victim for about two months. Edward Peirce had known defendant since childhood and the victim for about three to four years. Peirce would use methamphetamine with the victim and sometimes with defendant.
At 8:00 or 9:00 a.m. on June 3, 2014, Peirce knocked on the door of the victim's trailer, but there was no answer. Just as he was getting ready to leave, he heard defendant yell, "Who is it?" Defendant told Peirce to come inside.
Defendant told Peirce the victim was on the floor and looked as if she had suffered a stroke. Peirce saw the victim lying face down on the ground. As he made his way into the bedroom doorway, he was struck on the back of the head, knocking him to the ground. As he stood back up, he turned and saw defendant right behind him. Defendant tried to hit him again. Peirce took glancing blows to his head. Eventually, defendant said, "'Just get the hell out of here . . . .'" Peirce left.
Christine Nuno, the victim's neighbor, went over to the victim's trailer when another neighbor told her the victim needed help. Nuno went over to the victim's trailer where she heard the victim crying and struggling to breath. She called 911. Nuno saw a thick, dark, red mark from ear to ear on the victim's neck. She asked the victim who had injured her; the victim responded, "'Juan.'"
Tina Taylor, who had dated defendant for approximately a year prior to the victim's death, went to the victim's trailer sometime between 10:30 and 11:00 a.m. The victim was lying halfway in and halfway out the back door. Nuno was in the driveway on the phone.
Taylor thought the victim had suffered a heart attack. However, when she got close to the victim, she saw ligature marks around the victim's neck. The victim was moaning. Taylor asked the victim multiple questions, but all the victim answered was "'Juan.'"
A responding paramedic asked the victim what had happened to her; the victim responded, "'I was strangled with a cord.'" Another paramedic asked the victim what had happened; the victim said, "'My roommate attempted to choke me'" and mentioned the name "Juan." An emergency medical technician testified the victim kept saying, "'Juan did it. Juan did it. Juan did it,' over and over again." She said, "Juan did it" to every question asked of her.
The paramedics transported the victim to the hospital, where she later died. The county forensic pathologist conducted an autopsy of the victim's body on June 4, 2014. The pathologist noted: "There were multiple blunt impact injuries or contusions and abrasions or bruising and scrape-type injuries to the torso primarily, but also to the head. [¶] There was also evidence of ligature strangulation." He opined the cause of death was "laceration of [the] right renal artery due to blunt impact injuries to the torso."
II. DISCUSSION
Defendant contends insufficient evidence supports the court's true finding on the prior strike conviction enhancement. Specifically, defendant argues that since the court which sentenced defendant on the prior conviction offense constituting the strike allegation sentenced defendant to summary probation, the offense was automatically reduced to a misdemeanor, which cannot support the prior strike conviction enhancement. The People maintain that although the court eventually resentenced defendant to summary probation, which reduced the offense to a misdemeanor, the court initially sentenced defendant to formal probation, which maintains the offense as a felony for purposes of alleging a prior serious felony strike allegation. We agree with the People.
The information alleged that defendant's prior strike offense consisted of his conviction for criminal threats (§ 422) on August 2, 2006. At the court trial on the prior strike conviction allegation, the People introduced into evidence an exhibit consisting of defendant's booking photographs, the complaint, the felony plea form, the terms and conditions of the formal probation to which the court sentenced defendant, and the case print. The complaint reflects defendant had been charged in count 2 with felony criminal threats. (§ 422.)
The plea form reads that defendant agreed to plead guilty to criminal threats in return for a sentence of three years of formal, felony probation. The form additionally indicates that if the defendant obtained a suitable residence in Mexico, probation would be reduced to summary probation. The form reflects that the maximum possible custody commitment for the admitted charge would be three years.
The sentencing memorandum reflects that defendant had been granted three years of felony, formal probation; it additionally indicates the offense for which defendant had pled guilty constituted a strike. In a section denominated "Further Orders (not conditions of probation)," the memorandum reflects that formal probation would convert to summary probation upon defendant's obtainment of a suitable residence in Mexico.
The case print reflects that defendant pled guilty to criminal threats on August 2, 2006, acknowledging the offense constituted a strike. The court sentenced defendant on the same day to three years of formal probation. One of the conditions of probation reflects that "[f]ormal probation to convert to summary probation upon Appropriate Residence in Mexico." On September 8, 2006, the court granted a motion to modify the formal probation imposed earlier to summary probation.
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. [Citation.]" (People v. Miles (2008) 43 Cal.4th 1074, 1082.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt. [Citations.]" (Id. at p. 1083.)
Criminal threats is a wobbler offense punishable in the court's discretion as either a felony or misdemeanor. (People v. Queen (2006) 141 Cal.App.4th 838, 842.) A felony conviction for criminal threats is considered a serious felony offense potentially exposing a defendant to sentencing under California's "Three Strikes" law. (§§ 667, subd. (d), 1192.7, subd. (c)(38).) "The determination of whether a prior conviction is a prior felony conviction . . . shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor." (§ 667, subd. (d)(1), italics added; see People v. Park (2013) 56 Cal.4th 782, 802-803 [where the defendant pled guilty to a felony offense upon which the court imposed sentence, the court's later reduction of the offense to a misdemeanor did not affect the offense's qualification as a strike under the Three Strikes law].) "By this language, lawmakers made clear their intent to bring within the reach of the Three Strikes law a defendant whose wobbler was reduced to a misdemeanor after the time of initial sentencing. [Citations.]" (People v. Park, supra, at p. 794, italics added.)
"[A] felony is automatically converted to a misdemeanor 'after a judgment imposing a punishment other than imprisonment in the state prison.' [Citation.]" (People v. Glee (2000) 82 Cal.App.4th 99, 102, fn. omitted.) "[S]ummary probation is not authorized in felony cases. A grant of informal or summary probation is a 'conditional sentence.' [Citations.] Conditional sentences are authorized only in misdemeanor cases. [Citations.]" (Id. at p. 104.)
Here, defendant pled guilty to felony criminal threats and acknowledged the conviction was a strike offense. On the same day, the court sentenced defendant to formal, felony probation. Thus, because both defendant's prior conviction and the initial sentencing for that offense were for a felony offense, the offense qualified as a prior serious felony strike conviction. The fact that defendant was later sentenced to summary probation, while reducing the offense to a misdemeanor at that time for other purposes, did not affect the qualification of defendant's prior offense as a prior serious felony strike conviction. (People v. Park, supra, 56 Cal.4th at pp. 802-803 [where the defendant pled guilty to a felony offense upon which the court imposed sentence, the court's later reduction of the offense to a misdemeanor did not affect the offense's remaining qualification as a strike under the Three Strikes law].) Therefore, sufficient evidence supported the court's true finding on the prior strike conviction enhancement.
Defendant relies upon People v. Glee, supra, 82 Cal.App.4th 99, People v. Willis (2013) 222 Cal.App.4th 141, and People v. Kaufman (2017) 17 Cal.App.5th 370 for the proposition that the court's indication that it would, and did, reduce defendant's formal probation to summary probation at a later date if defendant met a condition precedent, effectively reduced defendant's offense to a misdemeanor at the initial sentencing, such that the prior offense could not support an enhancement for a prior strike conviction. We disagree.
In Glee, the defendant pled guilty to assault with a firearm "in return for the promise that his sentence would be 'a grant of probation, with a year in the county jail, with probation to terminate at the end of that year.'" (People v. Glee, supra, 82 Cal.App.4th at p. 101.) The defendant argued that his prior offense was automatically converted to a misdemeanor because "the court granted appellant summary probation, authorized only in misdemeanor cases, and terminated probation upon completion of the jail time." (Id. at p. 104.) Defendant contends, as in Glee, that because he was not advised that if he violated probation a prison sentence could be imposed, the "record supports the inference that the sentencing court did not intend to retain jurisdiction over appellant with the possibility of later imposing a prison sentence." (Id. at p. 105.) The Glee court held "that when the court suspended proceedings, granted summary probation, ordered appellant to serve one year in the county jail and directed that probation be terminated upon completion of the jail term, it automatically rendered the crime a misdemeanor pursuant to Penal Code section 17, subdivision (b)(1)." (Id. at pp. 105-106.) Thus, "[i]t necessarily follows that the conviction does not constitute a prior serious felony conviction within the meaning of the Three Strikes law." (Id. at p. 106.)
We note that no reporter's transcript of defendant's plea and sentencing for the prior conviction is included in the record. Thus, it is impossible to know precisely what the court or counsel advised defendant with respect to potential imprisonment should he have violated his felony, formal probation prior to obtaining the reduction to summary probation.
In Willis, after the court offered the defendant multiple chances to enroll in a deferred entry of judgment program, it imposed a suspended sentence with summary probation for 36 months. (People v. Willis, supra, 222 Cal.App.4th at p. 143.) After finding the defendant had violated the terms of his probation, the court reinstated the original probation grant but extended the term to 36 months from the date of the hearing on the violation. (Id. at p. 144.) The defendant contended that the court's order of summary probation automatically converted the defendant's wobbler offense from a felony to a misdemeanor. (Ibid.) The defendant relied on Glee. (People v. Willis, supra, at p. 145.) The court noted that, as in Glee, the lower court had sentenced the defendant to summary probation, which is only available in misdemeanor cases, and that the record evinced no intent to classify the offense as a felony. (People v. Willis, supra, at p. 145.) The court ultimately held that since the lower "court initially imposed summary probation, a disposition reserved for misdemeanors," "it effectively classified the offense as a misdemeanor." (Id. at p. 147, italics added.) Similarly, in Kaufman, the court held that the sentencing court's imposition of summary probation for a felony offense automatically converted the offense to a misdemeanor. (People v. Kaufman, supra, 17 Cal.App.5th at p. 396.)
In all the above cases, the courts initially placed the defendants on summary probation, immediately reducing the offense to a misdemeanor and effectively removing its jurisdiction to impose a prison sentence on the defendants from the outset. Here, by initially imposing felony, formal probation, the sentencing court retained jurisdiction to impose a term of imprisonment later should defendant violate a term of that probation. (See People v. Soto (1985) 166 Cal.App.3d 770, 774-775 [where the court suspended proceedings while granting summary probation, the court did not impose judgment; hence, the grant of summary probation did not convert the offense to a misdemeanor because the court reserved jurisdiction to impose imprisonment at a later time].) Moreover, defendant acknowledged his prior offense was a felony which amounted to a strike and could subject him to up to three years of imprisonment.
Contrary to defendant's claim, his situation is not similar to the defendant in Park. To the extent the court here reduced defendant's offense to a misdemeanor, it did not do so "upon initial sentencing," but did so only at a later point in time. Thus, because the court sentenced defendant as a felon "upon initial sentencing," defendant's offense remained a felony for prior felony conviction purposes and was properly used to impose a second strike sentence. Again, contrary to defendant's claim, the court placed defendant upon formal, felony probation for which it could have imposed a prison term had defendant violated the terms of that probation. The court only promised that it would place defendant on summary probation if he obtained a suitable residence in Mexico. However, there is no indication the court did not intend to retain jurisdiction over defendant if he violated the terms of his formal probation prior to obtaining such a residence or if defendant never obtained such a residence. Thus, sufficient evidence supports the court's true finding on the prior strike conviction allegation.
III. DISPOSITION
The judgment is affirmed. The court is directed to correct the abstract of judgment to reflect the sentences it imposed on counts 2 and 3. The trial court is further directed to forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.