People v. Aguirre CA2/2 ( 2021 )

Filed 4/12/21 P. v. Aguirre CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B296222
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA118509)
v.
NORBERT AGUIRRE,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of
Los Angeles County, Mike Camacho, Judge. Modified and
affirmed with directions.
Robert A. Werth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, A. Natasha Cortina, and Quisteen S. Shum,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Norbert Aguirre was accused of slashing a man’s
face. At trial, Aguirre claimed he “is not the one that did it.” The
jury disagreed and convicted him of assault by means of force
likely to produce great bodily injury and assault with a deadly
weapon. (Pen. Code, § 245, subd. (a)(1), (4).)1 He was sentenced
to 16 years in prison.
The trial court did not abuse its discretion by denying
Aguirre’s motion to dismiss a prior strike conviction or by
denying the jury’s request for a readback of the defense closing
argument. However, we vacate Aguirre’s conviction for assault
by means of force likely to cause great bodily injury, which
duplicates his conviction for assault with a deadly weapon: Both
crimes are based on the same act. (§ 954; People v. Vidana (2016)
1 Cal.5th 632, 650 (Vidana).) As modified, we affirm with
directions.
FACTS
On April 23, 2018, Alfredo Huazano was drinking beer at a
bus stop by a Valero station in La Puente. He uses a wheelchair.
Aguirre showed up, drinking beer, and they struck up a
conversation. Huazano knew Aguirre as someone from the
neighborhood. They went to Liquor Hut to buy more beer.
Huazano felt comfortable with Aguirre and paid for the beer.
They encountered an acquaintance of Aguirre’s at Liquor
Hut. At first, they talked and drank convivially. Then Aguirre
and the other man began arguing and shoving. Huazano left
when the fighting started. As he rolled down the sidewalk, he
heard Aguirre screaming behind him. He looked back and saw
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1 Undesignated statutory references are to the Penal Code.
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Aguirre approaching, holding a knife. Earlier, Huazano noticed
that Aguirre wore a knife at his waist.
Huazano had no idea why Aguirre was pursuing him. He
had not been disrespectful or given Aguirre cause to be angry.
Aguirre caught up and slashed Huazano’s face from his temple to
his nose. Huazano is positive Aguirre was his assailant.
Huazano’s face had to be sutured at a hospital.
The jury saw security camera footage from Liquor Hut.
Huazano identified himself with Aguirre and a third individual.
Cameras at the Valero station showed Huazano rolling into view,
right after the knife attack. Bystanders provided paper towels to
staunch the bleeding and called paramedics.
On cross-examination, Huazano conceded that he was
initially uncooperative with police and identified his assailant
only as a “male Hispanic.” He explained that he was upset, in
pain, and in no mood to discuss the attack. Huazano testified
that he drank two 25-ounce beers that afternoon but told officers
he had four beers. He also smoked marijuana with Aguirre.
Detective Stevan Suarez interviewed Aguirre, who said he
hangs out at the bus stop by the Valero station in La Puente,
drinking beer. Aguirre denied knowing Huazano or arguing or
getting into a fight with anyone or having any knowledge of a
knifing incident.
When Suarez first spoke to Huazano, he was vague about
his attacker. He described the assailant as a male with a dark
complexion between 35 and 45 years of age with tattoos on his
neck who hangs out by the Valero station. Suarez showed
Huazano a photographic lineup. Without hesitation, he pointed
to Aguirre as the person who slashed him. Aguirre is the only
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person in the six-pack of photos known to hang out by the Valero
station.
Huazano did not tell Suarez he saw a knife on Aguirre’s
waistband or about an argument between Aguirre and a third
party. Security camera video from Liquor Hut showed Huazano
outside the building, with two other individuals.
Rosa N. was working at Liquor Hut on the day of the
attack. In video from the store she recognized herself behind the
counter and the person in the wheelchair but denied knowing a
person with a backpack who was there at the time. Rosa N. was
a recalcitrant witness. She recalled speaking to Suarez but
denied giving him the video footage or identifying photos of
persons in the store. Later, she agreed that Suarez made a copy
of the video. In court, she said she did not recognize Aguirre,
seated at the defense table.
Suarez testified that he interviewed Rosa N. two weeks
after the attack. She recognized Aguirre’s photograph and said
he accompanied the man using a wheelchair. Suarez said it is
common for witnesses in La Puente to be unwilling to testify, due
to concerns about their safety living and working in the
neighborhood.
PROCEDURAL HISTORY
Aguirre was charged with assault by means of force likely
to produce great bodily injury (ABF). (§ 245, subd. (a)(4).) Over
objection, the court allowed the People to add a count of assault
with a deadly weapon (ADW). (§ 245, subd. (a)(1).) The court
reasoned, “[T]his is a single act that may have resulted in two
different types of crimes. Under the law, the jury can find as to
each, but the defendant can only be punished as to one” under
section 654.
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The information alleged that Aguirre committed a serious
and violent felony by inflicting great bodily injury. (§§ 12022.7,
subd. (a), 1192.7, subd. (c)(8), 667.5, subd (c)(8).) Enhancements
include a serious prior felony conviction for robbery and two
prison sentences. (§§ 211, 667, 667.5.)
The jury convicted Aguirre of ABF and ADW and found he
inflicted great bodily injury. He admitted his prior strike
convictions and prior prison terms.
The court denied Aguirre’s request to dismiss his prior
strike enhancement. Citing the disabled victim’s inability to
defend himself, the court sentenced Aguirre to the high term of
four years for ADW, doubled, plus five years for his robbery
conviction, plus three years for inflicting great bodily injury.
(§§ 245, subd. (a)(1), 667, subds. (a)(1), (e)(1), 12022.7.) It struck
a prior prison term enhancement. The court imposed a four-year
term for ABF but stayed the sentence. (§§ 245, subd. (a)(4), 654.)
The total prison term is 16 years.
DISCUSSION
1. Assault Convictions
Aguirre argues that he cannot stand convicted of ABF and
ADW because both arose from a single act: slashing the victim.
“The issue of whether multiple convictions are proper is . . .
reviewed de novo, as it turns on the interpretation of section
954.” (People v. Villegas (2012) 205 Cal.App.4th 642, 646.) We
agree that one of Aguirre’s convictions must be vacated.
Section 954 allows the People to join, in one action,
different offenses connected in their commission, different
statements of the same offense, and different offenses of the same
class of crimes. Though section 954 “ ‘authorizes multiple
convictions for different or distinct offenses, [it] does not permit
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multiple convictions for a different statement of the same offense
when it is based on the same act or course of conduct.’ ” (Vidana,
supra, 1 Cal.5th at pp. 648, 650 [defendant cannot be convicted of
larceny and embezzlement for the same conduct, even if the
crimes have different elements and are not lesser included
offenses].)
Aguirre cannot be convicted more than once for committing
a single offense. (People v. Rouser (1997) 59 Cal.App.4th 1065,
1073 [“A single crime cannot be fragmented into more than one
offense”].) “When a single act relates to but one victim, and
violates but one statute, it cannot be transformed into multiple
offenses by separately charging violations of different parts of the
statute.” (People v. Tenney (1958) 162 Cal.App.2d 458, 461;
People v. Muhammad (2007) 157 Cal.App.4th 484, 494.)
As to the crimes charged here, “[t]he offense of assault by
means of force likely to produce great bodily injury is not an
offense separate from . . . the offense of assault with a deadly
weapon.” (In re Mosley (1970) 1 Cal.3d 913, 918, fn. 5; People v.
McGee (1993) 15 Cal.App.4th 107, 114.) The Attorney General
asserts that ADW and ABF are distinct offenses.2
The ADW and ABF offenses were not distinct. Aguirre
committed one discrete act using a knife, not a multifacted
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2 Our Supreme Court will consider, in People v. Aguayo
(2019) 31 Cal.App.5th 758, review granted May 1, 2019, S254554,
whether ABF is a lesser included offense of ADW and if so,
whether an ABF conviction was based on the same act or course
of conduct as a conviction of ADW; the court directed the parties
to address in supplemental briefing whether section 245,
subdivision (a)(1) and (4) are “merely different statements of the
same offense for purposes of section 954? If so, must one of
defendant’s convictions be vacated?”
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attack.3 This is comparable to People v. Brunton (2018) 23
Cal.App.5th 1097 (Brunton), holding that when an assault is
based on “a defendant’s single act of using a noninherently
dangerous object in a manner likely to produce great bodily
injury, section 245(a)(1) and (4) are merely different statements
of the same offense such that the defendant may not be convicted
of violating both subparts of the subdivision.” (Id. at p. 1107.)
ABF and ADW are alternative statements of aggravated assault.
(People v. Aguilar (1997) 16 Cal.4th 1023, 1035.)
This case is not comparable to People v. Kopp (2019) 38
Cal.App.5th 47, review granted November 13, 2019, S257844. In
Kopp, the defendant was convicted of ADW and ABF. Count 1
involved “the use of a knife” and count 2 was “based on punches
and kicks to the head.” (Id. at p. 63.) Here, by contrast, both
counts are based on one indivisible act.
In sum, Aguirre cannot be twice convicted of one assault
where both convictions are different statements of the same
offense. (Vidana, supra, 1 Cal.5th at p. 650.) “Because both
counts assert only a single offense arising from the same conduct,
the jury could properly have convicted [him] of only one count.”
(Brunton, supra, 23 Cal.App.5th at p. 1106.) We vacate Aguirre’s
conviction in count 1 for ABF. (§ 245, subd. (a)(4).) He remains
convicted in count 2 of ADW, which fits his crime of slashing the
victim with a knife and which the trial court used as the principal
term in sentencing. (§ 245, subd. (a)(1); People v. Ryan (2006)
138 Cal.App.4th 360, 371 [reviewing court retains the conviction
that more completely covers the defendant’s act].)
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3 A knife is not an inherently dangerous object because it
has innocent uses. (People v. Aledamat (2019) 8 Cal.5th 1, 6.)
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2. Request For Summation Transcript
During deliberations, the jury requested a transcript of the
defense closing argument. The court replied that it “can offer
only the readback of witness testimony or stipulations received
during trial. This does not include the final arguments of either
counsel. As instructed, final arguments are not evidence for the
jury to consider.” The court later told jurors it could “give both
sides an opportunity to re-argue [any] issue that is of concern to
the jury” and “I can also certainly offer the readback of existing
testimony of any witness.” Counsel did not object.
Section 1138 “gives a deliberating jury the right to rehear
evidence and instruction on request, but does not extend to
argument of counsel.” (People v. Pride (1992) 3 Cal.4th 195, 266.)
The court did not abuse its discretion by deciding that the jury’s
attention would be diverted “from proper consideration of the
evidence” by repeating counsel’s argument. (Id. at pp. 266–267.)
Aguirre’s defense was simple. He claimed “this was a
mistaken identity case” or the victim was biased or not credible.
His defense “was not of such complexity that its repetition was
necessary in order for [him] to receive the full benefit of the
adversarial process.” (People v. Sims (1993) 5 Cal.4th 405, 453.)
If the court misunderstood its “inherent authority” to read
back argument, the error was harmless. (People v. Sims, supra, 5
Cal.4th at p. 453.) The evidence of guilt was compelling.
Huazano knew Aguirre from the neighborhood; he was not a
stranger. They chatted at the bus stop, traveled to Liquor Hut
(where Huazano treated Aguirre to a beer) and socialized outside
the store. In corroboration, Rosa N. told Suarez that Aguirre was
with Huazano at Liquor Hut. Huazano later saw Aguirre
pursuing him with a knife. All told, mistaken identity was a
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defense unlikely to succeed. “[I]t is not reasonably probable that,
had the trial court read back the summation, the jury would have
reached a different verdict.” (Ibid; People v. Watson (1956) 46
Cal.2d 818, 836.)
3. Motion To Strike Prior Convictions
By written motion, Aguirre asked the court to strike his
1993 conviction for robbery and 2011 conviction for carrying a
concealed dirk or dagger. (§§ 1385, 211, former § 12020, subd.
(a)(4).) He argued that the robbery conviction is 26 years old,
though he did not subsequently remain free of custody owing to
numerous drug convictions. The People countered that Aguirre
has led a life of crime, suffering 37 convictions with four felonies.
He was on probation when he assaulted Huazano.
The court reviewed Aguirre’s “thoroughly itemized”
criminal history and noted that he has engaged in assaults since
he was a minor. The probation report shows he committed ADW
at ages 14 and 15. While on parole for robbery, he was convicted
of misdemeanor battery (1996 and 1997) and ADW (1997). After
being discharged from parole in mid-1998, he was convicted of
domestic violence in 1999, 2009, 2014, and 2016. His rap sheet
shows four decades of unceasing arrests and convictions.
After considering Aguirre’s current offense and prospects
for living a crime-free life, the court found he has made no effort
to rehabilitate himself and engages in violent conduct. In the
present case, Aguirre “attacked an individual confined to a
wheelchair and viciously stabbed and injured that individual who
was unable to defend himself.” It concluded that Aguirre “falls
well within the spirit of Three Strikes” and denied his motion.
The court had discretion to deny Aguirre’s motion under
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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Striking a prior felony conviction is a departure from the
sentencing norm. (People v. Gillispie (1997) 60 Cal.App.4th 429,
434.) The court considers whether the defendant falls outside the
Three Strikes Law given his present felony, past convictions, and
“the particulars of his background, character and prospects.”
(People v. Williams (1998) 17 Cal.4th 148, 161.)
The court considered Aguirre’s criminal history and assault
on a vulnerable victim. His unrelenting 40-year history of
recidivism resulted in frequent incarceration. There is no
indication he feels remorse for his conduct or the burden he has
imposed on society. Aguirre is a habitual criminal to whom the
Three Strikes Law applies. (People v. Gaston (1999) 74
Cal.App.4th 310, 320–321 [defendant’s “continuous crime spree
. . . has substantially spanned his entire adult life”].) The denial
of his motion was not an irrational or arbitrary abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 377–378.)
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DISPOSITION
The judgment is modified to vacate Norbert Aguirre’s
conviction on count 1, assault by means likely to produce great
bodily injury. Aguirre’s prison sentence is unchanged. The trial
court is directed to correct the abstract of judgment and forward
a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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