People v. Carreles
| Decision Date | 26 March 2021 |
| Docket Number | F077989 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RUBEN JESSE CARRELES, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from a judgment of the Superior Court of Tulare County. Antonio A. Reyes, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
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During a traffic stop, defendant Ruben Jesse Carreles ran from the vehicle and then fired a shot at the pursuing police officer, striking him. Defendant was convicted by jury of the attempted premeditated murder of a peace officer (Pen. Code, §§ 664/187, subd. (a), 189, subd. (a); count 1),1 assault with a firearm on a peace officer (§ 245, subd. (d)(1); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 4). In addition to its findings that the attempted murder was willful, deliberate, and premeditated and committed on a peace officer (§ 664, subds. (a), (e)), the jury found true the firearm enhancement allegations attached to the attempted murder and assault counts (§ 12022.53, subds. (b)-(d)). In a bifurcated proceeding, the trial court found that defendant served a prior prison term (§ 667.5, former subd. (b)).2
The trial court sentenced defendant to 15 years to life for attempted murder and imposed additional consecutive terms of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), and one year for the prior prison term enhancement pursuant to section 667.5, former subdivision (b), for a total term of 41 years to life.3 Sentences on counts 2 through 4 were imposed and stayed under section 654.4 In addition, the trial court imposed the maximum restitution fine of$10,000 under section 1202.4, subdivision (b)(1); a parole revocation restitution fine of $10,000 under section 1202.45, subdivision (a), suspended; a court operations assessment of $160 under section 1465.8; and a court facilities assessment of $120 under Government Code section 70373.
On appeal, defendant claims the jury's premeditation finding is not supported by substantial evidence. He also claims the trial court abused its discretion when it declined to strike the section 12022.53, subdivision (d), firearm enhancement and, alternatively, remand is required under People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison) to allow the court to consider imposing one of the lesser firearm enhancements; under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he is entitled to remand for an ability-to-pay hearing on the fines and court assessments imposed; and under Senate Bill No. 136, he is entitled to have the prior prison term enhancement stricken and remand for resentencing.5
The People concede defendant is entitled to relief from the prior prison term enhancement under Senate Bill No. 136, but they disagree that remand for resentencing on that issue is required and they dispute defendant's entitlement to any relief on his other claims.
We reject defendant's substantial evidence claim and his challenges to the firearm enhancement, and we conclude that by failing to exercise his statutory right to object to the $10,000 restitution fine, he forfeited his Dueñas claim in its entirety. (§ 1202.4, subd. (d).) We agree with the parties that the prior prison term enhancement must be stricken in light of Senate Bill No. 136, but remand for resentencing is unnecessary.Therefore, we strike the prior prison term enhancement, which reduces defendant's sentence on count 1 from 41 years to life in prison to 40 years to life in prison. Except as modified, the judgment is affirmed.
Around 11:15 p.m. on August 18, 2016, Porterville Police Officers Perez and Duran were on patrol when Perez, who was a newer officer at the time, saw a car pass by without a working rear license plate light. Perez activated his marked patrol vehicle's overhead lights, pulled behind the car, and notified the dispatcher of the stop. The car slowed but kept going, and Perez then activated the red and blue emergency lights. He thought the driver might be planning to pull over on Olive Avenue, so he was not concerned.
As the car turned onto Olive, the passenger door opened and a man, later identified as defendant, jumped out and ran. The car then came to rest along the curb. Officers Perez and Duran exited their patrol vehicle, and Perez pursued defendant on foot while Duran stayed with the driver, who was defendant's girlfriend.
Defendant ran across the street with Perez chasing behind. Perez did not see anything in defendant's hands, which were visible to him, and he did not have anything in his own hands; his taser and firearm were holstered. Perez announced himself as a police officer and warned defendant he would get tasered if he did not stop.
Defendant looked back at Perez twice from approximately 10 feet away and appeared surprised. Defendant then turned and from a "shooting stance" or a "[l]ow-ready stance," he pointed a gun at Perez. Perez saw a muzzle flash and as he turned to avoid getting shot in the face, he felt a hit to his right buttock. Perez unholstered his firearm and shot at defendant several times.
Officer Duran ran toward Perez, who emptied his 15-round magazine at defendant. Duran also fired several shots at defendant, and Perez recalled dropping behind Duran to reload his firearm. When he looked up again, defendant was lying on the ground with his firearm approximately six inches away. Perez took cover and saw defendant reaching for his firearm. Approximately four times, Perez commanded defendant to stop or he would be shot, Perez then fired at defendant several more times as defendant kept reaching for the firearm. Defendant ceased reaching for his firearm at that point, and Perez informed Duran he was shot and needed to get help.
Perez radioed for help and he testified that by then, he had forgotten about the female driver, possibly due to his shock and extreme pain. As he walked toward the patrol vehicle, he saw the driver running toward him and, unsure if she was armed, he aimed his firearm at her and ordered her to stop multiple times. She finally dropped to the ground about five feet from him.
Backup then arrived and Perez was taken to the hospital by ambulance. He was shot one time through his right buttock and the bullet exited his inner thigh. His wound was treated with stitches and he was off duty for four or five weeks.
Officer Duran testified that after Officer Perez began chasing defendant and he stayed with the driver, he heard two distinct gunshots. He took cover and heard additional gunshots. He saw Perez and defendant facing each other approximately 15 yards apart, both in "postured stance[s]" with their hands on their firearms. Duran aimed at defendant and fired one shot. Perez and defendant then entered a parking lot and Duran lost sight of defendant behind a bush.
Duran ran to assist Perez and when he could see both again, defendant was still in a postured stance with his gun in his hands. Duran heard multiple shots and fired his gun again. Defendant then fell on the ground, face down. Perez approached and told Duran he had been shot in the leg. The two took cover and Perez reloaded. Perez then movedto take cover behind a shipping container and Duran took cover behind a dumpster. They ordered defendant to show his hands and Perez shot defendant again when defendant lifted his left arm to point his gun at them.
Duran testified that defendant yelled, "'Please stop, please stop.'" They told him to show his hands and he attempted to do so, but was unable. His firearm was on the ground within arm's reach.
Duran heard someone say, " " He turned and saw the driver walking toward them. She finally got down on the ground after repeated commands to do so.
Duran testified that Perez broke his cover. Although he told Perez to stay where he was and that he would cover the driver, Perez kept moving forward. Duran thought Perez was going to cover the driver, so he focused on defendant. Duran then heard the driver say, "'I want to see my babe'" two more times. Duran saw the driver was standing again and he did not see Perez, so he commanded the driver to get down again. After several commands, she complied, and Duran kept his focus on both the driver and defendant.
Once backup arrived, defendant was handcuffed, and Duran was able to check on Perez.
One of the responding officers testified that when defendant was detained, he was "[r]oughly" 10 feet away from his firearm, which was a revolver. The revolver held five rounds, four live and one spent.
Investigators determined that the officers fired 29 shots, although only 27 shell casings were recovered.
Defendant testified that he was not aware there was a gun in the car until his girlfriend told him that the police were behind them and she had a gun. Neither of themwas supposed to have a gun, and she asked him to take it and run so she would not get caught with it. Defendant testified he put the gun in one pocket and her bag of ammunition in another pocket. He then jumped from the car and ran.
Defendant saw an officer was gaining on him. He wanted to get rid of the gun, so he...
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