Filed 8/9/21 P. v. Arellano CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045762
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1754248)
v.
MIGUEL SANDOVAL ARELLANO,
Defendant and Appellant.
A jury convicted defendant of felony assault, misdemeanor assault, and
misdemeanor battery. Defendant challenges the misdemeanor assault as lesser included
and thus duplicative of the felony assault conviction. He also challenges the denial of his
motion under Penal Code section 17, subdivision (b) to reduce the felony assault to a
misdemeanor. We see no abuse of discretion in the trial court declining to reduce the
felony assault. We accept the Attorney General’s concession that the conviction for
misdemeanor assault is duplicative of the felony assault and must therefore be stricken.
We will modify the judgment to strike the misdemeanor assault and attendant fees, and
affirm the judgment as modified.
I. BACKGROUND
On Labor Day in 2016, Miguel Sandoval Arellano, along with codefendants
Paoolo Rivas and Luis Angel Rivas, beat an acquaintance, leaving him injured and
unconscious. The defendants had consumed alcohol at breakfast, after which they spent
several hours drinking with the victim and his coworker at the victim’s place of work (a
cabinetry shop). From there, the group went to a restaurant for dinner, where Luis Rivas
and the victim argued, and Paoolo Rivas grabbed the victim and “put him on the floor.”
(The parties dispute who was the aggressor in the restaurant.) The victim was upset. He
and his coworker returned to the cabinetry shop, and the defendants followed soon
thereafter. At the shop, an argument and a physical struggle over a machete ensued
between the victim and Luis Rivas, followed by an assault on the victim. The Rivas
brothers beat the victim who was on the ground unarmed, while defendant used the
machete to keep two witnesses at bay. The victim’s coworker tried unsuccessfully to
protect the victim during the assault. The defendants fled by car, and the victim was
transported to the hospital in an ambulance. He spent several hours in the emergency
room where he underwent a series of x-rays and scans, and received sutures for a head
laceration.
The victim testified at trial that the assault was unprovoked. He grabbed a
machete from among the shop’s tools only after the defendants refused to leave the shop
and advanced on him. He set the machete on a worktable when he believed the
defendants no longer posed a threat. Defendant then grabbed a pipe (also a shop tool)
and started striking him inside the shop, and the assault continued outside the shop.
The defendants all testified that they had acted in self-defense: the victim chased
Paoolo Rivas with the machete, brought Paoolo Rivas to his knees and threatened to kill
him, and defendant dislodged the machete from the victim’s grip using a pipe tool. One
of the witnesses testified that defendant knocked the machete to the ground with a metal
pipe as Luis Rivas and the victim were struggling for the knife’s control. Both witnesses
testified that the victim tried to run, but was overtaken and cornered by the defendants,
and severely beaten. According to the witnesses, one of the defendants kept them at bay
with the machete while the others beat the victim. The victim’s coworker did not testify.
(According to testimony at the preliminary hearing, the coworker left the country
sometime after the incident.)
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A jury acquitted each defendant of assault with a deadly weapon other than a
firearm (Pen. Code, § 245, subd. (a)(1); count 1) and of battery causing serious bodily
injury (id., §§ 242, 243, subd. (d); count 3). Each defendant was convicted of felony
assault with force likely to create great bodily injury (id., § 245, subd. (a)(4); count 2) and
of the lesser included offenses of simple assault and simple battery as to count 3. Great
bodily injury special allegations were found not true.
Defendant and codefendant Luis Rivas moved to reduce their assault convictions
to misdemeanors under Penal Code section 17, subdivision (b). Defendant argued to the
trial court that he “fear[ed] for his friend’s safety” in an “altercation … with a machete
wielding man not very familiar” to him, and he “disarmed the man of the machete and
punched him.” He argued that he was a successful businessman with no criminal history
who cared for his severely disabled brother, financially provided for his mother and
girlfriend, was cooperative with law enforcement, and exhibited exemplary behavior
during the court proceeding. The prosecutor took issue with defendant’s claim of self-
defense, noting that defendant and the codefendants chased down the victim down after
disarming him, beat the victim until others intervened, and immediately left the scene.
She argued that defendant failed to take responsibility for his actions by minimizing his
culpability and blaming the confrontation on the victim. In denying the motions, the trial
court stated: “[A]s I indicated to you in chambers, and I will indicate again for the
record, I think the fact that the victim in this matter was injured relatively severely, had to
be taken to the hospital and spent at least two days in the hospital, I don’t think this is
misdemeanor conduct.”
Imposition of sentence was suspended as to both defendant and codefendant Luis
Rivas. Both were placed on three years’ formal probation and ordered to serve 60 days in
custody or on electronic monitoring. (The judgment as to codefendant Paoolo Rivas,
who was sentenced at a later date, is not part of the record before us.) All defendants
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were ordered jointly and severally to pay the victim’s emergency room bills totaling
$26,739, and $9,000 in other restitution directly to the victim.
II. DISCUSSION
A. THE PENAL CODE SECTION 17(B) MOTION
A trial court has discretion to reduce a felony assault to a misdemeanor at the time
of sentencing. (Pen. Code, §§ 17, subd. (b)(1), (3); 245, subd. (a)(4).) Factors relevant to
the trial court’s decision include “ ‘the nature and circumstances of the offense, the
defendant’s appreciation of and attitude toward the offense, [and] his traits of character as
evidenced by his behavior and demeanor at the trial.’ ” (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) Courts may also consider the sentencing
objectives set forth in California Rules of Court, rule 4.410. (Alvarez, at p. 978.) Those
include protecting society, punishing the defendant, deterring crime, encouraging the
defendant to lead a law-abiding life, and preventing the defendant from committing new
crimes. (Cal. Rules of Court, rule 4.410(a).) The trial court’s discretion under Penal
Code section 17 is broad, and it will not be disturbed on appeal unless it is clearly shown
the decision was irrational or arbitrary. (Alvarez, at p. 977.) Absent such a showing, we
presume the trial court acted to achieve legitimate sentencing objectives. (Ibid.)
Defendant argues that the trial court unduly focused on the victim’s injuries, and
its ruling was unreasonable in light of the relevant factors supporting reduction. As in the
trial court, he argues the circumstances are unusual because the offense “originated with a
deadly assault by the victim.” In his view, the acquittal on count 1 (assault with a deadly
weapon) was an implied finding that defendant had initially acted in self-defense or
defense of his friend, and he was convicted of assault “only because his group continued
to strike [the victim] after he was disarmed.” He argues that the victim’s “unexpected
deadly assault” spiked his fear and adrenaline, the “post-disarming” assault was brief, and
his limited participation brought an end to the assault. He contends he is not a danger to
society, as reflected in the court’s grant of probation, and that his character, lack of
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criminal record, conduct at trial, work history, and commitment to paying restitution all
favor misdemeanor treatment. He also notes the impediment a felony conviction poses to
his obtaining a contractor’s license (a seven year wait period).
We see no abuse of discretion on this record. The evidence shows a violent,
potentially life-threatening beating of an unarmed man not justified by self-defense. One
witnesses testified that after the machete was knocked to the ground, one of the
defendants held the pipe, another the machete, “then there were three of them against [the
victim],” the beating lasted “maybe one minute,” and the victim was bleeding a lot and
lost consciousnesses. Both witnesses testified that the victim wanted to run but was
quickly overtaken and “pulled against [a] van,” where he fell to the ground and was hit
with fists and kicked, even after his coworker intervened. The witnesses’ testimony
supports the view that the assault ended when the victim was rendered unconscious,
rather than by defendant removing himself and the codefendants from the scene. The
evidence also shows that defendant handled the machete in a threatening manner against
the witnesses, which enabled the Rivas brothers to accomplish the beating.
The trial court described the length of the victim’s hospital stay as “at least two
days” and characterized his injuries as “relatively severe[].” Defendant argues those
findings are erroneous. Medical records showed the victim was admitted to the
emergency room at 9:27 p.m. and discharged the next morning at 4:01 a.m. A forensic
nurse who reviewed the medical records testified that the victim suffered from blunt force
trauma to the forehead, causing a laceration three centimeters long, five millimeters deep,
and requiring eight sutures. She testified that the level of force needed to create the
laceration could be enough to cause a head injury or traumatic brain injury. The
sentencing court was familiar with the facts, having presided over the trial. The parties
had discussed the motion in chambers before it was denied on the record, and neither
defendant elected to place on the record any perceived factual misstatements made by the
court. Neither the court’s comments nor the acquittal on count 1 convince us that the
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court misunderstood the severity of the victim’s injuries or acted in an arbitrary or
irrational manner in denying the motion. Regardless of what actually transpired before it
was “three against one,” the prosecutor asked the jury to assume the defendants disarmed
the victim after being threatened with the machete. She made clear that the charged
offenses occurred after the defendants had control of the machete and the victim was
defenseless, and the jury rejected self-defense as a justification for the assault.
Defendant raises for the first time in his reply brief that the reduction of
codefendant Luis Rivas’s sentence to a misdemeanor shows arbitrariness in the trial
court’s ruling. Both defendants were sentenced in March 2018, after the trial court
denied their motions under Penal Code section 17(b). This court granted codefendant
Rivas’s motion to stay his appeal to allow him the opportunity to file a new motion in the
trial court to reduce his sentence, which the trial court granted in July 2020. That more
recent ruling does not reflect on the trial court’s discretion when it denied defendant’s
motion two years earlier, nor does it compel us to remand the matter to the trial court for
reconsideration, as defendant now requests.1
B. THE LESSER INCLUDED SIMPLE ASSAULT
The Attorney General concedes that defendant’s misdemeanor assault conviction
(a lesser included offense in count 3) must be stricken because simple assault is a lesser
included offense and thus duplicative of the felony assault conviction in count 2. (People
v. McDaniels (2008) 159 Cal.App.4th 736, 747.) A defendant cannot be convicted of
both a greater offense and a lesser included offense, i.e., one that is necessarily
committed whenever the greater offense is committed. (People v. Montoya (2004)
33 Cal.4th 1031, 1034.) When a defendant is convicted of both a greater and a
1
Defendant’s argument—that in the event we order a sentencing remand and the
trial court on remand imposes sentence in count 3 (misdemeanor battery), that sentence
must be stayed under Penal Code section 654—is moot in light of our upholding the
felony sentence in count 2.
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necessarily included offense, the lesser offense must be reversed. (People v. Moran
(1970) 1 Cal.3d 755, 763.) We will therefore modify the judgment to strike the
misdemeanor assault conviction (denoted on the clerk’s minutes as count 4) and attendant
fees. The court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)) and the court
facilities assessment (Gov. Code, § 70373) shall be reduced accordingly. We will affirm
the judgment as modified. (People v. Haskin (1992) 4 Cal.App.4th 1434, 1441 [appellate
court has authority to correct an unauthorized sentence on appeal].)
III. DISPOSITION
The judgment is modified to strike defendant’s misdemeanor conviction for simple
assault, reflected on the clerk’s minutes as count 4. The court operations assessment
(Pen. Code, § 1465.8, subd. (a)(1)) is reduced from $120 to $80, and the court facilities
assessment (Gov. Code, § 70373) is reduced from $90 to $60. As modified, the judgment
is affirmed. The superior court clerk is directed to enter a new judgment reflecting these
modifications.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H045762 - The People v. Arellano