People v. Perez
| Decision Date | 20 October 2020 |
| Docket Number | G056047 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. CRISTIAN PEREZ, IVAN ALONSO VALENZUELA PEREZ, and CARLOS ARMANDO SIMENTAL Defendants and Appellants. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed in part, reversed in part, and remanded with directions.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Cristian Perez.
Kurt David Hermansen and Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant Ivan Alonso Valenzuela Perez.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Armando Simental.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendants Cristian Perez, Ivan Alonso Valenzuela Perez,1 and Carlos Simental were jointly tried and convicted of several offenses: kidnapping F.M. to commit robbery (Pen. Code, § 209, subd. (b)(1); count 4);2 first degree robbery in concert (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A); count 5); kidnapping B.M. (§ 207, subd. (a); count 6); and first degree residential burglary (§§ 459, 460, subd. (a); count 9). Ivan and Simental were also convicted of making criminal threats (§ 422) to F.M. (count 7) and A.M. (count 8). The jury found that during the commission of the kidnapping and robbery offenses in counts 4 and 5, Ivan personally inflicted great bodily injury on F.M. (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.53, subd. (b)). Ivan was also found to have personally used a firearm in the commission of the criminal threats and burglary offenses in counts 7 through 9. (§ 12022.5, subd. (a).) The jury found Simental personally used a firearm in all the offenses. (§§ 12022.53, subd. (b); 12022.5, subd. (a).)3
Cristian was sentenced to prison for life for the kidnapping for robbery conviction (count 4) and a consecutive determinate term of 10 years and eight months, which was comprised of nine years for robbery (count 5) and one year and eight months for kidnapping B.M. (count 6). The court imposed a concurrent six-year term for the burglary conviction (count 9).
Ivan was sentenced to prison for an aggregate determinate term of 36 years and eight months consecutive to an indeterminate life term. On count 4, the court imposed a life sentence for the kidnapping for robbery conviction and 13 years for the attending firearm and great bodily injury enhancements. On count 5, Ivan received a nine-year sentence for robbery plus 13 years for the firearm and great bodily injury enhancements on this count. A consecutive term of one year and eight months was imposed for the kidnapping of B.M. in count 6. The court imposed concurrent sentences on the remaining counts.
Simental similarly received a life sentence plus an aggregate determinate term of 34 years. On count 4, the court imposed a life sentence for the kidnapping for robbery conviction and 10 years for the firearm enhancement. Simental received a nine-year sentence for the robbery conviction (count 5) and 10 years for the firearm enhancement on this count. The court imposed a consecutive sentence of one year and eight months for the kidnapping of B.M. (count 6) plus three years and four months for the firearm enhancement. Concurrent terms were imposed on the remaining counts.
On appeal, defendants raise multiple claims attacking their convictions for kidnapping F.M. for robbery (§ 209, subd. (b)(1); count 4) and kidnapping B.M. (§ 207, subd. (a); count 6). They contend the evidence was insufficient to support the asportation element of either kidnapping conviction and that the court committed prejudicial instructional error with its instructions on the asportation element of the kidnapping offenses. Ivan, joined by Cristian and Simental, also asserts the asportation element of aggravated kidnapping in section 209, subdivision (b)(2) is unconstitutionally vague. Weaffirm defendants' convictions for aggravated kidnapping in count 4 but reverse their convictions for kidnapping B.M. in count 6 for instructional error. We remand for retrial on this kidnapping charge or, alternatively, for resentencing.
Simental, joined by Ivan, raises another instructional error claim, asserting the court erred by failing to instruct the jury with CALCRIM No. 335 that accomplice testimony must be corroborated and cautiously viewed. We agree the failure to give this instruction was error but conclude it was harmless.
Defendants also raise several sentencing issues. All three defendants contend their sentences for robbery (count 5) and burglary (count 9) must be stayed under section 654, and Ivan and Simental assert their sentences for making a criminal threat to F.M. (count 7) should be stayed under section 654. The Attorney General concedes defendants cannot be punished for both kidnapping for the purpose of robbery and robbery and that the sentences for robbery must be stayed under section 654. We agree. We remand the matter for resentencing and direct the trial court to stay defendants' sentences for robbery and Cristian's sentence for burglary. However, we uphold the trial court's imposition of concurrent terms on Ivan and Simental's convictions for making a criminal threat and burglary.
In a supplemental opening brief, Simental, a veteran, seeks resentencing because the record does not reflect the court considered his service-related illness as a mitigating factor at his sentencing hearing, as required by section 1170.91, subdivision (a). As we are remanding the matter for resentencing, we direct the trial court to comply with section 1170.91 at the resentencing hearing. Last, we direct the trial court to correct two clerical errors Cristian has identified in his abstract of judgment.
F.M., a drug dealer, lived in a house in Anaheim with his wife, K.P., their three daughters, ten-year-old B.M., seven-year-old J.M., and a nine-month-old infant, his two sisters, A.M. and M.M., and his cousin's wife, X., and her two children.
Knowledge of F.M.'s involvement in the drug trade apparently extended to Idaho, where Ivan and his brother Oscar Valenzuela4 lived and then to Washington, where their cousin, Cristian, and friend, Simental, lived. The four men flew to California in September 2011, with a plan to go to F.M.'s home and rob him of his drugs and money. In preparation, they bought gloves, masks, and a tool to ram open F.M.'s front door.
They arrived at F.M.'s house around 3:00 a.m. on September 13, 2011. All four men were wearing black or dark colored clothing and carrying weapons. Oscar, Ivan, and Simental had AR-15 rifles; Cristian had a handgun. After breaching the front door, they entered the house and yelled that they were the police. They began searching the bedrooms with the intent of putting all of the home's occupants into one bedroom.
F.M. and K.P. were asleep in the master bedroom with their nine-month-old daughter. B.M. and J.M. were asleep in the next bedroom, and A.M. was asleep in her bedroom. X. and her two children were in the living room, which had been converted into a bedroom for them.
F.M. and K.P. awoke to see two masked men carrying rifles enter their bedroom. Instinctively, K.P. jumped up. One of the men pushed her back down and told her not to get up and not to look at them.5 When she again tried to get up, he threatened to hit her with his firearm. K.P. laid face down on the bed, holding her baby. A man bound her legs with a zip tie. F.M. was also positioned face down on the bed, and his wrists and ankles were bound with zip ties. He could feel a rifle pressed against the back of his head.
One of the men knocked on the door to B.M.'s bedroom, waking her up. She saw two men at the door dressed in black and wearing masks. One of them told her and her sister to get up. B.M. did not understand what was happening and followed them as they went to A.M.'s bedroom.
A.M. was asleep in her bedroom. Oscar grabbed her leg, pulling her off her bed and onto the floor. She screamed and he hit her in the face with the butt of his rifle. He ordered her to get up and led her to F.M.'s bedroom at gun point, as B.M. walked with them. In F.M.'s bedroom, both A.M. and B.M. were instructed to look down and not at the intruders. Simental told B.M. and her sister J.M. to get in the closet because it was not safe for them to be in the room.
Ivan told F.M. that they knew he had drugs and money, and he demanded F.M. hand them over. As incentive to quickly comply with their demands, Ivan hit F.M. in the back of the head with a rifle. A.M. started crying and pleaded with them not to hurt her brother. Ivan responded by hitting her with his rifle and telling her to be quiet. A.M. was moved to the floor, and as she was lying face down, her hands were zip tied behind her back. A.M. could not see what was happening but heard her brother being hitand heard one of the men, who Oscar identified as Ivan, demanding to know where the money and drugs were.
F.M. had four and one-half pounds of methamphetamine in an ice chest in his bedroom and told them to take it. Oscar took the ice chest and gave it to Cristian, who put it in their vehicle. The methamphetamine was worth about $6,000 or $7,000. But this was not enough for them. Ivan demanded more. Ivan continued to beat F.M. and threaten his family. Using the butt of his rifle, Ivan...
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