Filed 8/7/13 P. v. Lopez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046933

         v.                                                            (Super. Ct. No. 10CF1711)

JORGE A. LOPEZ,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
F. Toohey, Judge. Affirmed.
                   Patricia A. Scott, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura
A. Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
              Jorge A. Lopez was found guilty of second degree murder after he crushed
Marcus Nieto’s chest with a concrete block as he lay defenseless on the ground. The trial
court sentenced Lopez to 16 years to life in prison. On appeal, Lopez maintains the trial
court abused its discretion by denying him probation, finding the case was not “unusual”
under Penal Code section 1203, subdivision (e)(1).1 We affirm the judgment.
                                              I
              Lopez and his girlfriend of two years, Mercedes Esperanza Garcia Blanco,
were homeless and they went early one morning to an encampment near a Santa Ana
construction site to get some sleep. They were “coming down” from having used
methamphetamine three days earlier. They talked to Ramon Fuentes at the encampment.
Lopez, Blanco, and Fuentes obtained methamphetamine and smoked it in Fuentes’s van.
Later, Lopez left Blanco in the encampment to obtain more methamphetamine. He
returned several hours later with scratches on his face.
              While Lopez and Blanco were sitting on a mattress, Nieto and another man
walked into the encampment. Lopez stood up and confronted them stating, “You guys
are backstabbing me.” Lopez then punched Nieto, who fell to the ground. The other man
ran away. Lopez picked up a nearby 16 pound piece of concrete, lifted it over his head,
and dropped it on Nieto. Lopez picked up and threw the same concrete block several
times, hitting Nieto’s face and chest, while Nieto lay on the ground. Eventually, Blanco
was able to pull Lopez away from Nieto, and they left the scene in Fuentes’s van. Blanco
recalled Lopez was “angry and laughing” at the time.
              Fuentes drove them to Lopez’s aunt’s home. Lopez showered and washed
the blood off his white tennis shoes. Blanco asked Lopez why he hit Nieto, but Lopez
did not respond. Lopez later told Blanco she had not “seen anything yet” and he was
used to doing “this.”


1             All further statutory references are to the Penal Code.

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              That evening police discovered Nieto dead, lying on the ground with a
concrete block near his head. The police later determined Nieto’s DNA was on the
block. The police also searched Lopez’s aunt’s home and recovered the clothing and
white tennis shoes Lopez wore the day of the murder. The clothing also contained blood
matching Nieto’s DNA.
              A forensic pathologist conducting Nieto’s autopsy determined the cause of
death was blunt force trauma and abdominal hemorrhaging due to a ruptured artery. The
pathologist noted Nieto also had a blood alcohol level of .46, but this level of intoxication
was not the immediate cause of his death. The pathologist concluded Nieto’s fatal
injuries were consistent with a 16 pound concrete block having been thrown onto his
chest. On cross-examination, the pathologist acknowledged literature describing
posttraumatic apnea that may cause death and occurs when there is combination of head
trauma and high alcohol blood levels. The pathologist also agreed a blood alcohol
content of .46 percent could be lethal to a normal person without any other trauma.
              For Lopez’s defense, his counsel presented testimony from Santa Ana
police officer Dean Fulcher, who attended the autopsy. He confirmed his report did not
mention Nieto’s high blood alcohol level or posttraumatic apnea as a cause of death.
Fulcher explained the forensic pathologist did not mention these things, but told Fulcher
the cause of death was from the rupture of blood vessels. Harry James Bonnell, the
former chief medical examiner for the City of San Diego, testified on Lopez’s behalf,
stating the cause of death was acute alcohol intoxication. Based on Nieto’s eye fluid
samples, Bonnell opined Nieto’s blood alcohol content was greater than .48 percent at the
time of his death and such a significant toxicology result should have been listed as a
contributing cause of his death.
              The information charged Lopez with murder by use of a deadly weapon,
but the jury found Lopez guilty of second degree murder by the use of a dangerous
weapon. (§§ 187, subd. (a); 12022, subd. (b)(1).) The probation department prepared a

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sentencing report about Lopez’s background, family, and criminal history. The probation
officer noted that when asked about the crime, Lopez indicated the trial witnesses had
lied, he and Nieto were drunk that day, and he never intended for things to occur the way
they did. Nevertheless, Lopez stated he “felt horrible about what occurred, and he did not
know the victim died until the police talked to him.” Lopez “stressed what happened was
an accident,” but he believed God put him in custody to force him to reflect upon his life
and “realize what is important.” He begged for another chance and for the court to be
“merciful” because his children needed him. The probation officer opined Lopez was not
remorseful.
               The probation officer also reported Lopez had no prior criminal
convictions, but he had been arrested for domestic violence, public intoxication, and
possession of drug paraphernalia. In addition, while in custody, he assaulted a fellow
inmate. The probation officer opined Lopez’s drug and alcohol use might have been one
contributing factor, as it also appeared Lopez had “a propensity towards violence, which
[was] another concern in regard to community safety in this matter.” As for Lopez’s
children, the probation officer observed Lopez admitted he had not seen his youngest
daughter, who was 11 years old, and sadly there was no indication Lopez’s children were
a priority in his life.
               The probation officer concluded Lopez was presumptively ineligible for
probation because his murder conviction involved a deadly weapon. The officer
discussed the factors relevant to granting probation, concluding the circumstances of the
case did not weigh in favor of granting probation: “[T]he crime is not substantially less
serious than circumstances typically present in other cases, is not less serious than a prior
conviction, the crime was not committed under circumstances of great provocation or
duress, was not committed because of a mental condition, and [Lopez] is neither youthful
nor aged. [¶] [Lopez’s] behavior presents a serious danger to the community, and his



                                              4
past history is not indicative of a person who would comply with community supervision
if not in custody. Further, [Lopez] has an Immigration and Customs Enforcement hold
. . . which will result in his deportation upon his release from custody, and render him
unavailable for community supervision on a local level.”
              Lopez filed a sentencing brief arguing there were facts showing his was an
unusual case, arguing the murder weapon was simply a chunk of concrete, he was
intoxicated and did not intend for Nieto to die, and he did not have a criminal record.
The prosecutor filed a sentencing brief stating this was not an unusual case because
Lopez showed his violent nature before, during, and after the attack. The prosecutor
focused on the fact Lopez bragged about the murder to his girlfriend, saying, “‘You
haven’t seen nothing yet, this is what I’m used to doing.’” The prosecutor noted there
was no evidence Lopez committed the crime under circumstances of great duress or
provocation because after hitting Nieto once in the face, he was rendered unconscious
and posed no threat to Lopez. The prosecutor concluded probation was not warranted
because Lopez’s “willingness to use violence even when his victim [was] helpless [made]
him a danger to society.”
              The trial court agreed and sentenced Lopez to 16 years to life in prison. In
making its ruling, the court explained, “[Lopez] is not eligible for probation unless the
court finds that this is an unusual case [and] the interest of justice would best be served
by granting probation. [¶] And the court does not find that that presumption [against
probation] has been rebutted, this limitation is not substantially less serious [¶] This
concrete block that [Lopez] used, he used to crush into the chest of this defenseless man
on the ground, [is an] extremely violent act. There’s no way the court could, under any
circumstances in good faith grant probation in the case. [¶] I might note that [Lopez] is
not legally in the country. [¶] [It is] documented that he has substantial use of alcohol
and methamphetamine which makes him a danger to society. He[] talks about his
children needing him. He’s got . . . five children. And it’s clear that [due to] his

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methamphetamine use and alcohol use [he] gave them limited support. His father and
Martha Gutierrez basically are victims of this matter also.”
                                              II
              Lopez argues the trial court abused its discretion in denying his request for
probation. He asserts the trial court minimized or ignored the factors that strongly
supported consideration of probation in the interests of justice and his was an “unusual”
case within the meaning of section 1203 and California Rules of Court, rule 4.413(c)
(hereafter, rule 4.413). Specifically, Lopez contends his intoxication at the time of the
crime, the spontaneous nature of the murder, his lack of criminal convictions, and his
remorse demonstrated he met the criteria for a grant of probation. He concludes, “it
appears the trial court acted arbitrarily in finding only that [he] committed an ‘extremely
violent act’ and in commenting on his substance abuse as a factor which ‘makes him a
danger to society’ without weighing in the many positives about [him] personally, and the
attenuating circumstances of the offense . . . .” Based on our review of the record, it
cannot be said the court abused its discretion.
              Section 1203, subdivision (e), provides, “Except in unusual cases where the
interests of justice would best be served if the person is granted probation, probation shall
not be granted to any of the following persons: [¶] (1) . . . [A]ny person who has been
convicted of . . . murder, attempt to commit murder, . . . and who was armed with the
weapon at either of those times.” (Italics added.)
              Rule 4.413(b) explains, “If the defendant comes under a statutory provision
prohibiting probation ‘except in unusual cases where the interests of justice would best be
served,’ or a substantially equivalent provision, the court should apply the criteria in
(c) to evaluate whether the statutory limitation or probation is overcome: and if it is, the
court should then apply the criteria in rule 4.414 to decide whether to grant probation.”
In other words, the court’s first step is to evaluate whether the case is sufficiently
“unusual” to overcome the statutory limitation on probation. Only if the defendant is

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deemed eligible for probation should the court consider the criteria listed in rule 4.414
regarding the decision to grant or deny probation.
              To assist the trial court, rule 4.413(c) is divided into two subsections:
(1) “Facts relating to basis for limitation on probation,” and (2) “Facts limiting
defendant’s culpability.” Rule 4.413(c)(1) states it may be an “unusual case” when the
facts serving as “the basis for the statutory limitation on probation, although technically
present, [are] not fully applicable to the case. . . .” Rule 4.413(c)(1) provides one lengthy
example: Probation may be appropriate when, “(A) The fact or circumstance giving rise
to the limitation on probation is, in this case, substantially less serious than the
circumstances typically present in other cases involving the same probation limitation,
and the defendant has no recent record of committing similar crimes or crimes of
violence; and [¶] (b) The current offense is less serious than a prior felony conviction that
is the cause of the limitation on probation, and the defendant has been free from
incarceration and serious violation of the law for a substantial time before the current
offense.” (Italics added.) In short, when a defendant does not have any prior
convictions, this provision would apply if the court determines his or her crime was
“substantially less serious” than other murders committed with deadly weapons.
              Rule 4.413(c)(2), “Facts limiting defendant’s culpability” provides the
court may also consider facts or circumstances that did not amount to a defense but
reduce “the defendant’s culpability for the offense . . . .” It lists three possible
circumstances. The first one concerns defendants committing crimes “under
circumstances of great provocation, coercion, or duress . . . .” (Rule 4.413(c)(2)(A).)
This subdivision is inapplicable based on the facts of this case and Lopez’s defense the
killing was accidental.
              The second category relates to crimes “committed because of a mental
condition not amounting to a defense, and there is a high likelihood that the defendant
would respond favorably to mental health care and treatment that would be required as a

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condition of probation[.]” (Rule 4.413(c)(2)(B).) The third factor limiting a defendant’s
culpability is his age: “The defendant is youthful or aged, and has no significant record
of prior criminal offenses.” (Rule 4.413(c)(2)(C).)
              The trial court’s findings as to whether there are unusual circumstances, as
with the court’s decision to grant or deny probation, is reviewed for an abuse of
discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 (Du).) “‘An
order denying probation will not be reversed in the absence of a clear abuse of discretion.
[Citation.] In reviewing the matter on appeal, a trial court is presumed to have acted to
achieve legitimate sentencing objectives in the absence of a clear showing the sentencing
decision was irrational or arbitrary. [Citations.]’ [Citation.]” (People v. Ferguson
(2011) 194 Cal.App.4th 1070, 1091.)
              In his sentencing brief, Lopez argued there were facts showing his was an
unusual case because the crime was “substantially less serious than the circumstances
typically present in other cases involving the same probation limitation . . . .” (Rule
4.413(c)(1)(A).) He focused on the nature of the murder weapon, arguing it was merely a
chunk of concrete that was not brought to the crime scene and no other weapons were
used. He also argued, “The blows to the face and body (not the abdomen) were not
sufficient to cause death.” In making these statements, we assume Lopez sought to
mitigate the circumstances of the murder based on the fact his weapon was
unsophisticated and capable of also causing non life-threatening injuries.
              On appeal, Lopez expands his argument to include several factors set forth
in rule 4.413. As in his sentencing brief, Lopez begins by asserting the murder was less
serious than other murders. (Rule 4.413(c)(1)(A).) He offers the following explanation:
The murder is less serious than others because he did not intend to kill Nieto and he was
very remorseful for his actions. Moreover, Nieto’s inebriation was a substantial
contributor to his death and there was evidence Lopez did not plan to kill Nieto because



                                             8
he did not come “‘armed’” in the usual sense.” He adds, “[T]he presence of the concrete
block was nothing but fortuitous, an object of chance.”
                However, we cannot reweigh the evidence. Our task is to determine if the
court abused its discretion in ruling the circumstances of the murder were not
substantially less serious than other murders. The trial court stated, “This concrete block
that [Lopez] used, he used to crush the chest of this defenseless man on the ground, [is
an] extremely violent act. There’s no way the court could, under any circumstances in
good faith grant probation in the case.”
                We conclude, the court’s ruling is amply supported by the record. Lopez
repeatedly threw a heavy piece of concrete onto a defenseless man’s head and chest,
killing him. He did not drop a rock one time, accidently crushing the victim’s chest. We
agree with the trial court’s assessment the murder was particularly vicious and brutal.
Immediately afterwards, Lopez laughed and later boasted about his aggressive behavior.
Although the concrete block may have been a weapon of chance, Lopez’s conduct during
and after the murder amply support he will continue to be a danger to society if not
incarcerated.
                Lopez faults the court for focusing on the violent nature of the murder and
his substance abuse rather than other positive attributes relating to the crime that were in
his favor. “‘A trial court may minimize or even entirely disregard mitigating factors
without stating its reasons.’ [Citation.] Further, unless the record affirmatively reflects
otherwise, the trial court will be deemed to have considered the relevant criteria, such as
mitigating circumstances, enumerated in the sentencing rules. [Citation.]” (People v.
Zamora (1991) 230 Cal.App.3d 1627, 1637.) It was reasonable for the trial court to
downplay Lopez’s statements of remorse, lack of criminal history, lack of intent to kill,
and the victim’s levels of intoxication considering the undisputed fact Lopez essentially
stoned to death an unconscious man for no apparent reason. In denying Lopez probation,
the trial court clearly stated its reasons, properly focusing on the seriousness of his crime

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and reasonably concluding Lopez was a danger to others. “We will not interfere with the
trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense
and the defendant to be sentenced.’ [Citation .]” (People v. Downey (2000)
82 Cal.App.4th 899, 910.)
              Lopez relies on Du, supra, 5 Cal.App.4th 822, where a woman convicted of
voluntary manslaughter with a firearm received probation, and argues the facts of his
conviction are much less egregious. But the facts of Du are readily distinguishable.
Further, exercise of discretion by its very nature suggests that different courts may
reasonably arrive at different decisions, even on the same facts. (People v. Garcia (1995)
32 Cal.App.4th 1756, 1771.) It cannot be said the trial court abused its discretion in
declining to grant Lopez a probationary sentence.
              Alternatively Lopez cites to rule 4.413(c)(1)(B), asserting the court should
have relied on this factor and found him eligible for probation. He argues this
subdivision of the rule is relevant anytime the current offense is less serious than a prior
felony offense and, therefore, should also apply when a defendant has no prior felony
offenses. He suggests the subdivision applies to those who are not “habitually violent
persons.” He has misconstrued the meaning of rule 4.413(c)(1)(B). It provides the court
may consider probation when the current offense is less serious than a prior felony
conviction “that is the cause of the limitation on probation.” (Italics added.)
Accordingly, this subdivision only applies when the probation limitation is due to the
nature of a prior conviction. In other words, it permits the court considering minor
offenses to consider probation despite a defendant’s serious criminal history. The
provision has no application to defendants lacking a criminal history. In the case before
us, it is Lopez’s current offense of murder with a deadly weapon that is the cause of the
limitation on probation, not a prior offense. The provision is inapt.




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              On appeal, Lopez also refers to rule 4.413(c)(2)(B), permitting probation
when the offense was committed due to a “mental condition not amounting to a defense”
and requires the defendant would “respond favorably to mental health care and
treatment.” Without providing supporting authority, Lopez asserts that being under the
influence of alcohol and methamphetamine qualifies as a mental condition under
rule 4.413(c)(2)(B). We disagree. Certainly intoxication and drug usage can result in a
temporarily altered or diminished mental state. However, there is no legal or logical
basis to treat voluntary drug/alcohol usage the same as a diagnosed mental health
condition, such as depression or schizophrenia. A drug or alcohol rehabilitation program
encompasses much more than mental health care and treatment. We conclude this
subdivision is also inapt because there is no evidence Lopez was mentally ill or required
mental health care.
              Finally, Lopez asserts probation was warranted because he was “youthful”
and had no significant record of prior criminal offenses and therefore fell under the
preview of rule 4.413(c)(2)(C). That subdivision of the rule authorizes the trial court to
consider probation in the unusual case involving a “youthful” or “aged” novice offender.
Although not defined, the terms “youthful” and “aged” clearly contemplate the two ends
of the spectrum of adulthood. On the one end is the “20-something,” unworldly offender
who may have naively committed a crime or is a good candidate for rehabilitation. On
the other end of the spectrum, is a first time offender nearing the end of his or her life,
and consequently is not likely to have the means or opportunity to reoffend. Thirty-five-
year-old Lopez falls somewhere in the middle of the spectrum, and for this reason, we
conclude the subdivision was not intended to apply to his circumstances. The court did
not abuse its discretion by failing to consider application of rule 4.413(c)(2)(C).




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                                        III
            The judgment is affirmed.




                                              O’LEARY, P. J.

WE CONCUR:



ARONSON, J.



IKOLA, J.




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