THE PEOPLE v. JOSE NUNEZ

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSE NUNEZ, Defendant and Appellant.

F059945

Decided: October 20, 2011

Victor Blumenkrantz, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

On December 18, 2009, appellant, Jose Nunez, was charged in a second amended information with attempted murder (Pen.Code, §§ 664 & 187, subd. (a), count one),1 assault on another prison inmate with a deadly weapon by means likely to cause great bodily injury while committed to a life sentence (§ 4500, count two), and possession of a sharp instrument while committed to a penal institution (§ 4502, subd. (a), count three).   The information alleged Nunez had four prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds.(b)-(i) & 1170.12, subds. (a)-(d)).  The information alleged enhancements for a prior prison term (§ 667.5, subd. (b)) and inflicting great bodily injury causing paralysis (§ 12022.7, subds.(a)-(b)).

Nunez was tried jointly with codefendant Thomas Bursiaga.   Nunez's objection to prison guards sitting behind him at counsel table was overruled by the trial court.   Nunez's objections to admission of the recovered weapon and to a picture of the recovered weapon used in the attack were overruled.   A mutual combat self-defense instruction was given without objection.

Codefendant Bursiaga was found not guilty by the jury of the charges against him.   Nunez was found guilty by the jury of all three counts and the great bodily injury enhancements.   In a bifurcated proceeding, the court granted the prosecutor's motion to dismiss one of the strike allegations and the prior prison term enhancement.   Nunez waived his constitutional rights and admitted the remaining three strike allegations.

On March 26, 2010, the court denied Nunez's request pursuant to People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 to strike any of the prior serious felony allegations.   The court sentenced Nunez on count two to a term of nine years, tripled pursuant to the three strikes law to 27 years.   The court imposed a consecutive term of five years for the section 12022.7, subdivision (b) paralysis enhancement for a total sentence of 32 years to life.   Sentences on the section 12022.7, subdivision (a) great bodily injury enhancement and counts one and three were ordered stayed pursuant to section 654.   Nunez's sentence was ordered to be served consecutively to the sentence he was serving at the time he reoffended in prison.

Various fines and fees were ordered, including a restitution fine of $10,000 and a direct victim restitution fine of $83,233.86.   Because Nunez was serving a life sentence at the time he reoffended, he was awarded no local custody credits.   Nunez filed a timely notice of appeal.   Appellate counsel's brief states no issues were found and seeks independent review of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ).

On December 3, 2007, Correctional Officer Don DeAzevedo was working at California State Prison, Corcoran, as a control booth officer.   Inmates Salinas and Bursiaga lived in cell 224.   They were placed in a shower so another officer could conduct a search of their cell.   Salinas and Bursiaga remained in the shower for between 25 and 40 minutes.   As Salinas and Bursiaga left the shower and walked toward their cell, Nunez ran up and began hitting Salinas.   Bursiaga also began hitting Salinas with his fists.   Salinas was hitting back.

DeAzevedo saw a shiny object in Nunez's right hand.   Nunez was hitting Salinas in what DeAzevedo described as a stabbing motion.   DeAzevedo sounded an alarm.   Salinas fell, in what appeared to be a tripping motion, into his cell.   Nunez and Bursiaga were still striking Salinas.   DeAzevedo yelled at the men to get down.   Nunez jumped onto Salinas's back and Bursiaga went prone.   DeAzevedo saw Nunez holding a shiny object in his right hand.   DeAzevedo raised his 40 millimeter baton launcher.   An inmate yelled “gun.”   Nunez immediately jumped off Salinas and went prone.   After Salinas fell down, DeAzevedo never saw Salinas move his legs again.   Salinas was only moving his head, arms, and shoulders.

DeAzevedo stated that Nunez told him while Bursiaga and Salinas were in the shower that there could possibly be a problem with these two inmates.   At Nunez's request, DeAzevedo allowed Nunez and two other inmates to separately go and talk to Bursiaga and Salinas.   DeAzevedo considered Nunez to be a peacemaker who was trying to deescalate a problem.   DeAzevedo had seen Nunez have a positive influence on other inmates on 10 to 20 occasions.   When DeAzevedo later saw Nunez after the assault, Nunez said, “No disrespect, it is just business.”

Officer Raymond Serda was in the control booth with DeAzevedo during the incident.   Serda did not see the beginning of the fight.   Nunez, Bursiaga, and Salinas were between cells 224 and 225.   Bursiaga was punching Salinas.   Serda then saw Nunez punching Salinas.   When Nunez pulled his hand back, Serda saw “a shiny object come out of his [Salinas's] back.”   Nunez was striking Salinas in the upper back torso with a downward motion into Salinas's back.

Officer Craig Lane took a picture of the shiny object.   Lane described the object as an inmate stabbing, or, an inmate-manufactured weapon.   Officer Michael Harris brought a Stokes litter to transport Salinas to get medical attention.   After placing Salinas in the litter and carrying him downstairs, Harris saw the weapon on the ground.   Harris stopped assisting with Salinas's transport and watched it until the prison investigation unit arrived.   After the investigation unit took photographs of the scene that included the weapon, Harris placed the weapon into an evidence envelope before placing it into an evidence locker.   Harris described the weapon as real sharp.

Officer Joseph Rocha saw Salinas lying face down.   Salinas was motionless and covered in blood inside the doorway of his cell.   Salinas's legs were not moving and he had multiple, bleeding punctures on his side and back.   Rocha grabbed Salinas's feet and helped pull him onto the tier outside the cell.   Salinas was removed in a Stokes litter to receive medical attention.

Rocha explained that Nunez had been his porter and never gave him any problems.   Rocha also explained that officers had not stabilized Salinas with a backboard before picking him up by the feet and dragging him out of his cell face down.

Robin Cardoso, a prison nurse, dressed Salinas's wounds before he was taken to the prison emergency room (ER) because blood was still spurting from them.   Salinas had four bleeding wounds from his back, six wounds in his abdominal area, and wounds on his upper arms, and on his left side.   Dr. Sasan Salmi attended to Salinas in the ER. Dr. Salmi counted 16 or 17 wounds on Salinas's back, abdomen, and extremities.   Salinas was in critical condition.   The ER in the prison was insufficient for Salinas, so Dr. Salmi and his staff prepared Salinas for transportation to Fresno Community Hospital.   Photographs and a video of Salinas's injuries were taken in the ER and admitted as exhibits and shown to the jury.

Dr. Salmi saw Salinas again when Salinas returned to the prison more than a month later.   Salinas stayed in CTC, similar to a skilled nursing facility, in the prison.   Salinas's medical records showed he had a transected, or totally severed, spinal cord between thoracic vertebrae 6 and 7. Salinas was paralyzed below the waist and was incontinent with urine and bowel movement.   The prison weapon recovered could have caused the transection of the spinal cord.   Moving Salinas out of his cell without first stabilizing his spine would not have exacerbated Salinas's injury because he had not suffered a fracture to any vertebrae.

Inmate Trevor Williams testified that although he had not had permission to do so, he had been outside his cell since 9:45 in the morning.   Salinas appeared drunk to Williams.   Around 1:30 p.m., Williams was roaming around when he saw Salinas walking from the shower holding a shiny object.   Williams saw Nunez and Salinas striking each other.   Williams never saw Nunez holding or using a shiny object.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (Wende, supra, 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on May 9, 2011, we invited appellant to submit additional briefing.   To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

THE COURT * FN*.  Before Wiseman, Acting P.J., Levy, J., and Gomes, J.