People v. Cervantes
| Decision Date | 14 March 2022 |
| Docket Number | E074437 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. NESTER CERVANTES, Defendant and Appellant. |
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF1402145 Johnnetta E. Anderson, Judge.
Michelle Rogers, under appointment by the Court of Appeal for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Melissa Mandel and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
FIELDS J.
A jury found defendant and appellant Nester Cervantes guilty as charged of the first degree premeditated murder of Chris Aguilar on July 20, 2014. (Pen. Code, §§ 187, subd. (a), 189, subd. (a).)[1] The jury also found true an allegation that defendant personally and intentionally discharged a firearm causing great bodily injury or death in the commission of the murder. (§ 12022.53, subd. (d).) Defendant was sentenced to 50 years to life: 25 years to life for the murder, plus 25 years to life for the firearm enhancement.
In this appeal, defendant claims: (1) insufficient evidence shows the murder was willful, deliberate, and premeditated; (2) the court erroneously failed to instruct sua sponte on the "subjective" meaning of provocation for purposes of second degree murder; (3) the prosecutor prejudicially misstated the law during closing argument; (4) the trial court abused its discretion and violated his right to a jury trial in failing to investigate a report of a juror's possible misconduct during jury deliberations; (5) remand for resentencing is necessary for the court to consider sentencing him on a lesser, uncharged firearm enhancement; and (6) the unpaid portions of his $514.58 booking fee and $1, 095 for the costs of the presentence investigation report must be stricken from the judgment pursuant to Assembly Bill No. 1869 (2019-2020 Reg. Sess.).
We agree that any unpaid portion, as of July 1, 2021, of the booking fee and the cost of the presentence investigation report must be stricken from the judgment. (Gov. Code, § 6111, subd. (a); Pen. Code, § 1465.9, subd. (a).) We also agree that the matter must be remanded for resentencing so the court may consider exercising its discretion to strike the section 12022.53, subdivision (d) firearm enhancement and impose a lesser enhancement under subdivisions (b) or (c) of section 12022.53. We reject defendant's other claims of error; thus, we affirm the judgment in all other respects.
On July 20, 2014, defendant went shooting with L. and N. That day, a photograph was taken of the three of them, showing defendant holding a revolver and L. holding a semiautomatic firearm. Later that evening, defendant, L., and N. were in the courtyard of defendant's apartment complex in Indio, hanging out with several others, including R. and C. Aguilar lived near the complex.
Around 8:00 p.m., Aguilar and his cousin, G., approached the group. Aguilar asked the group whether he could buy some "weed" or marijuana, but one or more members of the group said they did not have any marijuana and asked Aguilar to leave. R. later told a detective that "it seemed like" Aguilar and G. were "stirring up trouble." The group "hated" Aguilar's brother and had a "green light" on the brother because of "something that happened."
Defendant stepped away from the group, spoke with Aguilar and G. for a few minutes, and may have argued with Aguilar. After speaking with defendant, Aguilar and G. began walking away. At that point, defendant fired a round from his revolver, either into the air or the ground. Aguilar and G. then returned to the group. Aguilar said defendant had offended him by firing the revolver and told defendant to empty the gun and give it to him.
Defendant initially resisted Aguilar's demands. He told Aguilar he was only trying to clear the revolver's chamber, and he would "never do nothing" to Aguilar because he had known Aguilar for two years. But after Aguilar said," 'Do you know who the fuck I am?'" and" 'Give me the toy, '" defendant emptied the bullets from the revolver into his front pants pocket. Aguilar then asked whether anyone else in the group had a gun, and the group members said, "Nah." Aguilar then pulled out a knife, held it to defendant's throat, and told G. to get the revolver from defendant. Aguilar also said that he and G. would leave if they, the group, would give him the revolver. The revolver fell to the ground, G. picked it up and ran, and Aguilar walked away.
Defendant was "mad." As Aguilar was walking away, L. displayed a nine-millimeter handgun from his waistband and said," 'Give me the gun back and everything will be okay.'" At this point, defendant told L. that Aguilar was "talking shit" and asked L. for L.'s handgun. L. then gave defendant L.'s handgun.
As Aguilar continued to walk away, defendant raised L.'s handgun and "cocked it." Aguilar looked back and saw defendant, six-to-seven feet away from him, pointing the gun at him. Aguilar said," 'Kick it, kick it, ' 'Fuck that, '" and fired the handgun at Aguilar as he walked toward Aguilar, emptying the magazine of its 12 rounds. Six to seven of the 12 fired rounds hit Aguilar.
After Aguilar fell to the ground, defendant stood over him and asked," 'Mother fucker, you are going to do that to me?'" He then beat Aguilar in the face with the handgun, inflicting multiple facial lacerations and dislodging several of Aguilar's teeth.
Aguilar died from multiple gunshot wounds. A gunshot wound to his chest penetrating his lung and heart was fatal. Another gunshot wound to the center of his lower back hit his iliac vein and was likely fatal. The other gunshot wounds were to his arms and buttocks. Defendant fled the scene and was arrested five days later.
The jury was instructed it could find defendant guilty of first degree murder, rather than second degree murder, if it found he acted willfully and with premeditation and deliberation when he shot and killed Aguilar. (CALCRIM No. 521.) The jury found defendant guilty of the murder and found true the allegation that he committed it willfully and with premeditation and deliberation. Thus, the murder was first degree murder. Defendant concedes the evidence is sufficient to show he acted willfully-with intent to kill-but argues that it is insufficient to show he acted with premeditation and deliberation when he shot and killed Aguilar. Rather, he argues all of the evidence shows he acted rashly, without any planning or any motive to kill, after Aguilar held a knife to his throat and took his revolver. We find no merit to this claim.
In reviewing a claim that insufficient evidence supports a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-evidence that is reasonable, credible, and of solid value- such that a reasonable trier of fact could have found defendant guilty of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Perez (1992) 2 Cal.4th 1117, 1124 [].) The standard of review is the same when the People rely primarily on circumstantial evidence. (People v. Perez, at p. 1124.)"' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." '" (People v. Bean (1988) 46 Cal.3d 919, 933.)
The jury was instructed pursuant to CALCRIM No. 521 (first degree murder; Pen. Code, § 189) that it could find defendant guilty of first degree murder if it found he acted willfully and with premeditation and deliberation when he shot and killed Aguilar: (CALCRIM No. 521.)
Premeditation and deliberation are not to be confused with willfulness or intent to kill. "Premeditation and deliberation require 'substantially more reflection; i.e, more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill.'" (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-823, quoting People v. Wolff (1964) 61 Cal.2d 795, 822.)
Our Supreme Court has identified three "basic categories" or types of evidence that will generally furnish a "reasonable foundation" for an inference of premeditation and...
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