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People v. Torres

California Court of Appeals, Second District, Sixth Division

September 10, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
ROBERT EUGENE TORRES, JR., Defendant and Appellant.

          Superior Court County of San Luis Obispo No. 17F-04481 Gayle L. Peron, Judge

          Valerie G. Wass, under appointment by the Court of Appeal for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, David E. Madeo, Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.

          YEGAN, J.

         Robert Eugene Torres, Jr., no doubt, has some thought disorder. But his case should not now be diverted from the traditional criminal law process. We hold that the newly enacted mental health diversion statute (Pen. Code, § 1001.36)[1] cannot be applied on appeal after conviction and sentence. A contrary ruling would do violence to the language of the statute and potentially violate double jeopardy principles. Appellant was convicted by jury for discharging a firearm with gross negligence (count 1: § 246.3, subd. (a)), unlawfully causing a fire to an inhabited structure or property (count 2; § 452, subd. (b)), unlawfully setting fire to property of another (counts 3 & 4; § 452, subd. (d)), three counts of corporal injury to a spouse (§ 273.5, subd. (a); counts 6, 12, 13), assault with a deadly weapon (count 7; § 245, subd. (a)(1)), dissuading a witness from reporting a crime (count 9; § 136.1, subd. (b)(1)), misdemeanor false imprisonment (count 10; § 236), and battery on a spouse (count 11; § 243, subd. (e)(1)). Appellant entered a plea to felony vandalism (count 5; § 594, subd. (b)(1)). He was sentenced to nine years state prison, and six months county jail to be served concurrent to the prison term. We reverse the misdemeanor conviction on count 4 for unlawfully setting fire to the property of another, strike the six-month jail sentence with respect to count 4, and affirm the judgment as modified. (§ 1260.) The sentence remains the same: nine years state prison.

         Facts

         Appellant and his wife lived in a rented condominium in San Luis Obispo. From July 2015 to March 2017, wife was treated for brain and lung cancer which caused her to suffer vertigo and equilibrium problems, thin and dry skin, and weight loss. At first, appellant acted as a responsible caregiver for her. But his attitude toward wife changed. The continuing predicament precipitated a reign of cruelty starting in December 2016. Appellant grabbed wife by the arms, pinned her down on the bed, spit in her face, and while holding a pillow over wife's face said “‘Aren't you dead yet.'” Her forearms were “ripped” and bruised. Appellant told wife that if she told anyone about what happened “it would be the last thing [she] did.”

         In February 2017, appellant again pinned wife down on a bed, held a pillow over her face, and ripped the skin on her forearms. She managed to kick free but feared that appellant would kill her if she reported the domestic violence.

         In March 2017, there were more acts of violence. Appellant blocked wife from entering the bathroom. Appellant stepped to the side, grabbed wife by the shoulders and shoved her against the vanity. He remained in the bathroom doorway, blocked wife from leaving, and threatened her and said “‘Aren't you dead yet?'”

         On another occasion appellant shoved wife down on a bed and slammed the television remote control down on her foot. On yet another day, appellant threw wife on the bed, pinned her down, and tried to suffocate her with a pillow. Appellant threatened to shoot wife with a pistol, pulled the trigger, and said “‘See, it's not loaded.'” Appellant ranted on a daily basis and said he wished she was dead.

         On April 18, 2017 appellant pinned wife down on the bed and held a pillow over her face. Wife almost blacked out. The next day, appellant slammed wife into the bedroom wall, dragged her out the house, and locked the front door. Wife beat on the door and begged to be let inside for 10 to 15 minutes. When a friend arrived at noon to pick her up for a lunch date, wife was sitting in the front yard with suitcases and boxes. Wife looked “broken” and had a swollen ear. Wife moved out to live with her parents. She eventually reported the matter to the police.

         On May 11, 2017, a neighbor saw broken furniture, a coffee pot, a spice rack and a wooden chair outside the condominium. He called 911 to report that something was smoking behind appellant's fence. San Luis Obispo Police Officer Edwards responded to the call and saw household items and broken chairs in the yard, smoldering. Appellant was ordered to put out the fire.

         A week later, San Luis Obispo Police Officer Villanueva responded to a midnight call that gun shots had been fired at the condominium. Officer Villanueva heard the sound of breaking glass, loud thuds, and four gunshots. The officer then saw appellant walk into the backyard, raise his arm, and fire a shot.

         Appellant told Detective Vitale that he pointed a handgun “up towards the hill” and fired eight rounds. The detective visited the condominium and saw broken windows, holes in the walls, missing doors and light fixtures, and noticed that the kitchen cabinet and stovetop were missing. The living room carpet had a large burn mark and the word “liar” was spray painted on a wall. Detective Vitale found a.45 caliber semiautomatic handgun in a laundry basket and a charred pile of furniture, clothing, and household goods. The city fire marshal opined that ...


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