People v. Vindiola
| Decision Date | 29 March 2023 |
| Docket Number | F083433 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. XAVIER ANGELO VINDIOLA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. F20904699 of Fresno County. Alvin M. Harrell III, Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kari Mueller, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted appellant Xavier Angelo Vindiola of: (1) willful infliction of corporal injury on a cohabitant with a prior domestic violence conviction within seven years (Pen. Code,[1] § 273.5, subd. (f)(1); count 1); (2) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2); (3) false imprisonment by violence (§ 236; count 3); (4) criminal threats (§ 422; count 4); (5) dissuading a witness (§ 136.1, subd. (b)(2); count 5);[2] and (6) three misdemeanor contempts of court based on restraining order violations (§ 166, subd. (c)(1); counts 7, 8 &9).[3] As to counts 1 and 2, the jury found it true that Vindiola personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). Lastly, the jury also found it true that Vindiola had a prior serious felony conviction (§ 667, subd. (a)), and six prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
The trial court sentenced Vindiola to an aggregate term of 63 years to life, comprising a determinate term of 13 years to be followed by two consecutive indeterminate terms of 25 years to life under the Three Strikes Law. The indeterminate terms were imposed on the section 273.5 conviction in count 1 and the 136.1(b)(2) conviction in count 5.[4] The court also revoked Vindiola's probation arising out of his 2019 conviction in Fresno County Superior Court Case number F19901922 (the probation case) and imposed a concurrent 15-year determinate sentence.[5]
Vindiola appeals, claiming:
(1) His dissuading a witness conviction in count 5 must be reversed because the underlying acts of dissuasion occurred after the original felony complaint had already been filed.
(2) The witness dissuasion conviction must also be reversed because the trial court prejudicially misinstructed the jury: (a) on the temporal limitations of the offense as set forth in issue (1); and (b) by failing to tell the jury the offense required that a defendant attempt to prevent or discourage a victim/witness from causing charges to be filed, not just from assisting in the prosecution of those charges.
(3) Remand for resentencing is required because of retroactive changes made to section 1170 after Vindiola's original sentence was imposed.
(4) The trial court imposed an unlawful sentence in the probation case.
(5) The trial court abused its discretion by failing to strike enough of his prior strikes to permit an aggregate determinate sentence.
(6) The abstract of judgment must be corrected to include his presentence custody credits.
The People respond by arguing that 136.1(b)(2) encompasses Vindiola's conduct in this case, there was no instructional error, and the trial court did not abuse its discretion by not striking at least five of Vindiola's six strikes. They agree that remand for resentencing is necessary because of the changes made to section 1170, that the 15-year sentence imposed on the probation case was unauthorized, and that the abstract of judgment is deficient because it failed to include Vindiola's presentence custody credits.
We find the jury was misinstructed on the witness dissuasion charge in count 5 and the instructional errors were not harmless. The conviction for that offense must therefore be reversed and its indeterminate sentence vacated.
As for the alleged sentencing errors, we agree that Vindiola's determinate sentence must also be reversed, and the matter remanded for resentencing under the current version of section 1170. Similarly, the sentence imposed in the probation violation case was unlawful and must also be modified at resentencing.
Because the judgment is being partially reversed and the matter remanded for resentencing, we need not resolve whether the trial court abused its discretion by not striking any of Vindiola's six prior strikes. Vindiola may re-raise the issue of striking strikes at his new sentencing hearing. Finally, following the ultimate resentencing, the amended abstracts of judgment in both the current case and the probation case must include Vindiola's presentence custody credits.
The judgment is therefore reversed in part, affirmed in part, and remanded for further proceedings.
Because the basic facts are not in dispute, we need not lay them out in great detail. Nevertheless, we do so as we must in the light most favorable to the judgment. (People v Abilez (2007) 41 Cal.4th 472, 504.) Additional facts specific to the discussion of the issues raised are found below.
Vindiola and L.L. had a fractious and oftentimes violent domestic relationship, but they also had a child together. In 2019, Vindiola assaulted L.L. with a firearm, which resulted in a section 273.5, subdivision (a), conviction with a section 12022.5, subdivision (a) enhancement. On June 27, 2019, he was convicted of five counts of violating 136.1 for his repeated attempts to dissuade L.L. from cooperating with police, assisting in the prosecution of his felonious assault on her, and testifying against him.[6]The court imposed a nine-year prison sentence but stayed its execution and instead placed Vindiola on a grant of probation. The court also issued a criminal protective order, ordering Vindiola to have no contact with L.L. Nonetheless, when Vindiola was released from county jail in April 2020, the pair continued their on-again, off-again relationship.
On July 19, 2020,[7] L.L., along with their baby girl, drove to the apartment where Vindiola was living at the time, and the two got into an argument. It escalated and Vindiola began punching L.L. with his fist and even whipped her with an extension cord. He forced her back into her car, and they drove off, leaving the baby behind. Inside the car, Vindiola continued to punch and choke L.L. He kept the car doors locked, held on to L.L. by her hair, and told her he was going to kill her.
While they were in the car, Vindiola called his cousin B.M., asking her to come to the apartment and pick up the baby; B.M had often taken care of the child. When B.M. arrived, no one was there so she called Vindiola, asking where the baby was; he told her she was inside the apartment. B.M. said she needed the baby's car seat. Vindiola drove back to the apartment, took the car seat out of L.L.'s car, and put it in B.M.'s car. While Vindiola was buckling the car seat into B.M.'s car, L.L. rolled her car window down, stuck her head out, and screamed:
Vindiola ran back to L.L.'s car. He stuck his hand through the partially open window, grabbed L.L. by her hair, and began punching her in the head. B.M. ran after Vindiola and punched him, which allowed L.L. to open the door, get out of the car, and run. Vindiola got back into L.L.'s car and started to drive after her, but L.L. "darted across the street and jumped in [B.M.'s] car." Vindiola got out of L.L.'s car and went to B.M.'s car. He reached in, again grabbed L.L. by her hair, pulled her out, and dragged her by her hair back to her car. While she was being dragged along the ground, he repeatedly punched her in the head. According to B.M., the second punch knocked L.L. out because "her whole body went limp." B.M. added, "[A]bout the fourth or fifth punch ... all I could hear was [L.L.'s] head hitting the concrete like a melon."
Meanwhile, neighbors had called 911. B.M. said police showed up around the fourth or fifth punch. When they arrived, Vindiola ran. Officers gave chase and eventually found and arrested Vindiola.
The officers spoke with L.L., who identified Vindiola as her assailant. They saw that L.L.'s face was swollen. B.M. said she noticed L.L.had urinated on herself, and "[h]er whole shirt was covered in blood." At the hospital, doctors determined L.L. had a fractured jawbone, and "a lot" of soft tissue swelling.
The district attorney filed a felony complaint on July 21, and Vindiola was arraigned on that complaint on July 22. At arraignment, a court issued another criminal protective order, once again ordering Vindiola to have no contact with L.L. Despite the two protective orders, Vindiola made numerous jail phone calls to L.L; the first was made on the morning after the assault, even before the original felony complaint had been filed.
A preliminary hearing on the complaint was scheduled for August 28. In a call made in the afternoon of August 27, L.L. told Vindiola that while she was staying at her sister's house, a person knocked on the door. She opened the door slightly and after the person identified herself and asked for L.L., L.L. said something to the effect, "that's my sister [who] just moved," and closed the door. The person continued to knock on the door, and eventually "left a paper ... at the door."[8]
L.L told Vindiola that the "paper" was "[f]or tomorrow." Vindiola responded: ...
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