People v. Aguirre CA2/6 ( 2020 )

Filed 12/14/20 P. v. Aguirre CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B296528
(Super. Ct. No. KA119165)
Plaintiff and Respondent, (Los Angeles County)
v.
GILBERT ROMERO
AGUIRRE,
Defendant and Appellant.
Gilbert Romero Aguirre appeals a judgment following his
conviction, after a jury trial, of intimidating a witness (Rafael
Batres) (Pen. Code,1 § 136.1, subd. (b)(1)), a felony (count 1);
intimidating a witness (Stephanie Batres) (§ 136.1, subd. (b)(1)),
a felony (count 4), with findings that he threatened to use force or
violence (§ 136.1, subd. (c)(1)); and vandalism (§ 594, subd. (a)), a
misdemeanor (count 3). Aguirre admitted that he suffered five
prior serious felony strike convictions under the “Three Strikes”
1 All statutory references are to the Penal Code.
law. (§ 667, subds. (a), (b)-(i), 1170.12, subd. (a)-(d).) The trial
court sentenced him to an aggregate prison sentence of 70 years
to life.
We conclude, among other things, that 1) substantial
evidence supports the judgment; 2) Aguirre was not engaged in
constitutionally protected speech; 3) the trial court did not abuse
its discretion during sentencing by not striking Aguirre’s prior
serious felony strike convictions; but 4) the court erred by ruling
it had no discretion to impose a concurrent sentence on count 4.
We remand for resentencing. In all other respects, we affirm.
FACTS
On September 23, 2018, Alejandra Martinez was in the
front yard of her brother-in-law Rafael Batres’s house when she
heard a loud noise. She saw Aguirre drive his truck into Batres’s
truck. Aguirre got out of the truck and then broke the window of
Batres’s truck. She testified Aguirre was angry and yelling. She
said Aguirre was “just telling [them] to call” Batres to come out.
Batres came to the “front doorway” area of the house.
Batres’s daughter Stephanie Batres (Stephanie) called the police.
Aguirre looked in the direction of Batres and Stephanie and
said, “If you call the cops, you’re done.” Martinez testified she
was “scared,” Aguirre was “serious,” and she believed he was
“capable of carrying out these threats.”
Stephanie testified that she was on the phone with the
police while Aguirre was “smashing” the windows of her father’s
truck. She was “scared” and did not want Aguirre “to get near”
her father or herself. Martinez told her about Aguirre’s threat.
Stephanie testified she was afraid “because [she] was the one
that called [the police].” She heard Aguirre “calling out” her
father and Aguirre was “yelling.” Aguirre left while she was on
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the phone with police. He then returned. She feared for the
safety of her father because of Aguirre’s threat.
Rafael Batres testified he was “very scared” because of
Aguirre’s actions. Aguirre called him a “motherfucker” and a
“fuckin’ asshole.” Aguirre “kept on repeating” the threat, “If you
call the police, you’ll be done.” Batres had previously employed
Aguirre to perform work on construction jobs. On one prior
occasion, Aguirre had told Batres that he was a gang member
belonging to the “Townsmen” gang. Batres testified the words
“you were done” in the threat meant “[Aguirre] was going to come
over and kill [him].” Aguirre “was very angry.” Batres believed
the threats and felt Aguirre “was capable of carrying out those
threats.” He was concerned for his life and for his children and
his family.
In the defense case, Aguirre testified he had been drinking.
He was not angry at Rafael Batres. He drove his truck and
accidentally hit Batres’s truck two or more times. He hit the
window of that truck with a bottle and a hammer. He hit the
truck. He said, “It was out of being drunk. Mad. I was mad and
drunk.”
Aguirre did not tell anyone, “Call the police. When I get
out, you’re done.” He worked for Batres who did not pay him
“fair wages.” Aguirre testified that he “drove away to leave the
scene,” but he realized that he had “made a mistake.” He came
back to take “responsibility [for] . . . what [he] did wrong” and he
waited for the sheriff department to arrive.
Sheriff’s Deputy Sandy Ehrhorn testified she arrested
Aguirre. She said he was sober. He showed no signs of being
under the influence of alcohol or drugs. There was no alcohol on
his breath.
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DISCUSSION
Dissuading a Witness from Reporting a Crime to Police
Aguirre contends the evidence is insufficient to support his
conviction for intimidating or dissuading a witness. He claims
the statement he made was protected by the First Amendment.
We disagree.
In reviewing the sufficiency of the evidence, we draw all
reasonable inferences from the record in support of the judgment.
We do not decide the credibility of the witnesses. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)
To prove a violation of section 136.1, subdivision (b)(1), the
People must prove the defendant attempted to prevent or
dissuade a person who is a victim or witness to a crime from
making a report to any peace officer or other designated officials.
(People v. Navarro (2013) 212 Cal.App.4th 1336, 1347.) The
People must show the defendant intended to affect or influence a
potential witness’s or victim’s testimony or acts. (Ibid.)
In a case where the defendant’s conduct involves speech
and he or she had made a plausible First Amendment defense,
the court makes an independent review of the record. (In re
George T. (2004) 33 Cal.4th 620, 632.) Such constitutionally
protected speech may include, among other things, songs, fiction,
artistic expression, poems, “political or social discourse or the so-
called marketplace of ideas.” (People v. Brooks (1994) 26
Cal.App.4th 142, 149.) It may include crude, offensive, abusive,
vituperative “political hyperbole.” (Watts v. United States (1969)
394 U.S. 705, 708.) Or statements that are made as an
“expression of jest.” (People v. Lowery (2011) 52 Cal.4th 419,
427.) But it does not include threats. “ ‘What is a threat must be
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distinguished from what is constitutionally protected speech.’ ”
(George T., at p. 634.)
Aguirre claims his statement was merely an expression
motivated by “the fact that Batres had been financially exploiting
him for years” as his boss. The People respond the statement
“call the cops and you’re done” is not constitutionally protected
speech. It was not a labor relations claim, a political or artistic
statement, or, as in In re George T., a poem. It did not fall within
“social discourse or the so-called marketplace of ideas.” (People v.
Brooks, supra, 26 Cal.App.4th at p. 149.) A defendant may be
convicted consistent with the First Amendment where he or she
makes “threatening statements that a reasonable listener would
understand, in light of the context and surrounding
circumstances, to constitute a true threat . . . .” (People v.
Lowery, supra, 52 Cal.4th at p. 427.) Here, the language and
surrounding circumstances show this was a threat to dissuade
witnesses and victims from making a report about his criminal
activity to the police. It is properly prohibited under a state’s
Penal Code as it does not have First Amendment protection. (In
re George T., supra, 33 Cal.4th at p. 634; People v. Navarro,
supra, 212 Cal.App.4th at p. 1350 [section 136.1, subdivision (b)
does not unconstitutionally “target speech”; it only prohibits
unlawful conduct].)
Aguirre contends that 1) his words did not “rise to the level
of an unequivocal, unconditional and immediate threat,” and 2)
there was no evidence to support a finding that he specifically
intended his words to achieve some future consequence such as a
threat to use violence. We disagree.
The words “[i]f you call the cops, you’re done,” and Aguirre’s
conduct, constituted a complete unambiguous threat comprising
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all the elements of the offense. (§ 136.1, subd. (b)(1); People v.
Pettie (2017) 16 Cal.App.5th 23, 54-55.) “Proof of an attempt to
prevent any future report to the police was sufficient to satisfy
the statute.” (Ibid.) “There is, of course, no talismanic
requirement that a defendant must say ‘Don’t testify’ [or ‘Don’t
call the cops’] or words tantamount thereto, in order to commit
the charged offenses.” (People v. Thomas (1978) 83 Cal.App.3d
511, 514.) Even where the defendant’s words are ambiguous, if
they “reasonably may be interpreted as intending to achieve the
future consequence of dissuading the witness,” the “offense has
been committed.” (Pettie, at p. 55.) The statute includes “any
conduct geared toward impeding a person from reporting a
crime.” (People v. Navarro, supra, 212 Cal.App.4th at p. 1350.)
Where the offense “is accompanied by . . . an express or implied
threat of force or violence,” it is a felony. (§ 136.1, subd. (c)(1),
italics added.) Evidence the jury may consider in support of its
findings may be “inferred from [the defendant’s] actions and
words.” (People v. Young (2005) 34 Cal.4th 1149, 1212; see also
People v. Cruz (2008) 44 Cal.4th 636, 684 [jury may consider
“facts surrounding” the incident to find an implied threat of
violence].)
Here the jury could reasonably find Aguirre attempted to
dissuade the Batreses, the witnesses, and victims of his
vandalism and violent behavior from communicating with police.
The words “you’re done,” coupled with Aguirre’s violent conduct,
and the People’s evidence, reasonably conveyed the meaning that
this was an implied threat to use force or violence if they
discussed his criminal conduct with the police. Rafael Batres and
Stephanie testified they were frightened by this threatening
statement. Batres testified he believed Aguirre’s threat meant
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“he was going to come over and kill [him].” He testified he was
afraid for his children and his family. Batres “suffered from
nightmares following this incident for days.” “ ‘[I]t is important
to focus on the context of the expression.’ ” (People v. Brooks,
supra, 26 Cal.App.4th at p. 148.) Aguirre’s words had been
accompanied by yelling, vandalism, and violent behavior. (In re
Ernesto H. (2004) 125 Cal.App.4th 298, 313.) Batres testified
Aguirre was “very angry” and he believed Aguirre was “capable of
carrying out” his threat. Aguirre called him a “motherfucker”
and a “fuckin’ asshole,” and he “kept on repeating” the threat.
(People v. Thomas, supra, 83 Cal.App.3d at p. 514 [threatening
words “uttered in a loud, clear, and angry manner” may be
considered in deciding an attempt to dissuade].) Batres also
knew Aguirre had been a gang member. The jury could
reasonably infer this was an attempt specifically intended to
prevent contact with the police backed up by an implied threat of
violence.
Aguirre claims the jury should have found his statement
was simply a harmless “emotional outburst” showing his
“frustration” with his former employer. But Martinez testified
Aguirre’s threats were “serious.” Aguirre testified that he did not
make the statement at issue here and he was not angry. But the
jury did not find his testimony to be credible. Jurors rejected his
claim about not making the statement. Aguirre testified he had
been drinking and was intoxicated. He claims his statements
were the product of “an ‘unusual’ drunken tantrum.” But the
jury could reasonably reject that claim. Sheriff’s Deputy Ehrhorn
testified Aguirre was “sober” and there were no signs that he had
been drinking or was under the influence of drugs. The
testimony of the People’s witnesses, the repeated manner in
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which the threat was conveyed, and the violence that had
accompanied the threat were compelling evidence showing this
was not merely a single harmless emotional outburst. His action
showed deliberation. He told Martinez to have Batres come out;
he repeated the threat multiple times; his words were directed at
Batres and his daughter, “uttered in a loud, clear, and angry
manner” (People v. Thomas, supra, 83 Cal.App.3d at p. 514); and
the threat was made for the goal of protecting himself from
arrest. Aguirre notes that he testified that he left the scene, but
came back to take responsibility for his actions, and he waited for
the sheriff deputies to arrive. He claims this undermines the
jury’s verdict and shows he lacked criminal intent. But the issue
is not whether some evidence supports appellant, it is whether
substantial evidence supports the judgment. The credibility of
his testimony about his good intentions was a matter for the jury
to decide. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) The
verdict shows they did not find him to be credible.
Aguirre contends he could not have intended to dissuade or
actually dissuaded the Batreses from reporting a crime because
Stephanie had already been on the phone to make a 911 call
when he made his statement. The People respond that the jury
could find he did not know she called 911, to whom she was
talking, or the content of that conversation. Aguirre did not
testify that he saw her make a 911 call. He said Batres family
members were speaking Spanish and he could not understand
“what they were saying.” Stephanie testified Aguirre drove away
while she was on the phone with police. The threat was also
directed at Batres who had not called the police.
Moreover, even had Aguirre known what Stephanie was
saying on the phone, the jury could find his threat was an
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attempt to dissuade her from continuing to report facts to police
on the 911 call, from making a future report to police, or from
providing information to law enforcement during the
investigation to determine whether to arrest Aguirre. (People v.
Young, supra, 34 Cal.4th at p. 1211; People v. Pettie, supra, 16
Cal.App.5th at pp. 54-55; People v. Fernandez (2003) 106
Cal.App.4th 943, 950; People v. Thomas, supra, 83 Cal.App.3d
511, 513, fn. 3.) Aguirre’s statement was also a threat to Batres
who did not make the 911 call. The People were not required to
prove Aguirre’s statement successfully prevented a call to police,
or to prove “the existence of an ongoing proceeding, nor that
[defendant] successfully prevented any such efforts.” (Pettie, at
p. 54.) This crime involves the attempt to dissuade. (Ibid.) The
evidence was sufficient.
Sentencing - Consecutive Sentences
Aguirre fell within the purview of the Three Strikes law
with five prior strike convictions. The trial court imposed an
aggregate 70-years-to-life sentence. This included a 25-years-to-
life sentence on the count 1 intimidating a witness conviction,
plus two consecutive five-year prior serious felony conviction
enhancements (§ 667, subd. (a)), plus a consecutive 25-years-to-
life sentence on the count 4 conviction with two consecutive five-
year prior serious felony conviction enhancements (§ 667, subd.
(a)). For the misdemeanor, the court imposed a concurrent 364-
day sentence.
Aguirre contends the trial court erred by imposing
consecutive sentences for his convictions on counts 1 and 4 for
intimidating a witness. He claims the court erroneously believed
it lacked discretion to impose a concurrent sentence for the count
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4 offense and the case must be remanded for resentencing. We
agree.
As to counts 1 and 4, the trial judge said that the counts
are to be run consecutive because “[he does] not have the
discretion” to run them concurrently. He also said, “I do want to
indicate for the benefit of the reviewing court that it is my
assessment as the trial judge that should I have the discretion,
the counts . . . should be run concurrent, not consecutive.” (Italics
added.)
In People v. Hendrix (1997) 16 Cal.4th 508, 513, our
Supreme Court held that under the Three Strikes law
“consecutive sentences are not mandated . . . if all of the serious
or violent current felony convictions are ‘committed on the same
occasion’ or ‘aris[e] from the same set of operative facts.’ ” In
such a case, the trial court has “discretion to sentence defendant
either concurrently or consecutively.” (Id. at p. 514.) Here counts
1 and 4 were committed on the same occasion. The trial court
had discretion to impose these sentences concurrently. (Ibid.)
The People contend Hendrix is not current law because of
the passage of Proposition 36. They claim “the current Three
Strikes law, as amended by Proposition 36 . . . mandates
consecutive sentences,” therefore the trial court was correct. We
disagree.
Appellate courts have rejected the People’s contention.
They have ruled that the statutes enacted following the passage
of Proposition 36 did not change the Hendrix rule. (People v.
Torres (2018) 23 Cal.App.5th 185, 198, 201-202; see also People v.
Marcus (2020) 45 Cal.App.5th 201, 212-213; People v. Gangl
(2019) 42 Cal.App.5th 58, 60; People v. Buchanan (2019) 39
Cal.App.4th 385, 392.) Consequently, Hendrix remains current
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law, which means the trial court was not required to impose
consecutive sentences, and it had discretion to run count 4
concurrently to count 1. Consequently, this case must be
remanded for resentencing because the trial court did not know
its sentencing discretion. (In re Large (2007) 41 Cal.4th 538,
550.) Had it known that it had discretion to impose concurrent
sentences, it indicated it would have run count 4 concurrently to
count 1.
Not Striking Priors During Sentencing
Aguirre contends the trial court “abused its discretion in
refusing to strike” his prior serious felony “strike” “convictions.”
The People respond that the court acted within its discretion in
declining to strike the prior serious felony conviction
enhancements.
“[A] trial court may strike or vacate an allegation or finding
under the Three Strikes law that a defendant has previously
been convicted of a serious and/or violent felony” in furtherance of
justice. (People v. Carmony (2004) 33 Cal.4th 367, 373.) The
court determines whether the defendant falls outside the spirit of
the Three Strikes law. A ruling on whether or not to strike the
priors is reviewed for an abuse of discretion. (Ibid.)
Aguirre filed a motion to dismiss strike priors relying on
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. He
noted that he had four “strike priors” (§ 245, subd. (a)(1)) in 1986,
and a “strike prior” in 1993 (§ 273.5, subd. (a)). He emphasized
that he was 56 years old, the prior convictions were 25 and 32
years old, and that his last felony occurred in 1993.
The People opposed the motion claiming Aguirre “has led a
continuous life of crime for the past 33 years.” He had 12 total
convictions, which included four “serious strike felonies” and one
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“violent strike felony.” They said Aguirre “has consistently been
convicted of a misdemeanor or felony crime with no more than 1
or 2 years in between being released from custody and being
arrested for the next crime.”
In denying the request to strike priors, the trial court noted
that in 1988 Aguirre was released on parole. But he “returned to
custody multiple times for violation of parole.” It said, “[W]hen I
count the two current crimes, the defendant has a total of seven
strike priors.” It said that Aguirre had led “a life of violence.”
He constituted “a serious danger to society. . . . He is within the
spirit of the Three Strikes law.”
Aguirre contends there are significant facts that should be
considered in mitigation. These include that Aguirre “left his
gang life behind, and became a family man.” Leaving gang life
may be a significant mitigating factor involving the defendant’s
background that a trial court may consider. (People v. Carmony,
supra, 33 Cal.4th at p. 374; Dix v. Superior Court (1991) 53
Cal.3d 442, 460; People v. McGlothin (1998) 67 Cal.App.4th 468,
473-474.) Aguirre’s trial counsel did not present evidence on this
issue, or even mention it, at the sentencing hearing. But because
this case must be remanded for resentencing, Aguirre should
have an opportunity to present such evidence at the resentencing
hearing in his attempt to convince the court to strike priors.
(Carmony, at p. 374; People v. Acosta (2018) 29 Cal.App.5th 19,
26 [“ ‘on remand for resentencing “a full resentencing as to all
counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances” ’ ”].)
“[O]n remand the trial court will have ‘ “jurisdiction to modify
every aspect of [appellant’s] sentence” ’ ” (Acosta, at p. 26), and
receive new evidence on sentencing factors at the resentencing
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hearing. (Dix, at p. 460; People v. Webb (1987) 186 Cal.App.3d
401, 409; People v. Foley (1985) 170 Cal.App.3d 1039, 1047; Van
Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744.)
But based on the evidence in the current record, Aguirre
has not shown the trial court abused its discretion by not striking
priors.
DISPOSITION
The case is remanded to the trial court for resentencing. In
all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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David C. Broughham, Judge
Superior Court County of Los Angeles
______________________________
Maura F. Thorpe, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez, Noah P. Hill and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
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