Filed 12/18/20 P. v. Nunez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE RAMOS NUNEZ,

Defendant and Appellant.

 B302671

 (Los Angeles County

 Super. Ct. No. VA139753)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Olivia Rosales, Judge. Affirmed. 

John F. Schuck, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven D. Matthews and J. Michael 

Lehmann, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________
2

Jose Nunez fatally shot his brother-in-law in the chest and 

head for no apparent reason. A jury convicted him of first degree 

murder and found true firearm enhancement allegations. In a 

prior opinion, we affirmed the judgment of conviction, but 

remanded the case for the trial court to exercise its discretion 

whether to strike the firearm enhancement allegations. The 

court declined to do so, and Nunez appealed. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND1

The morning of August 2, 2015, Nunez was at home with 

his wife, Deborah Nava, and his four children. At the time they 

were living with Deborah’s brother, Joe Nava.2 Deborah heard a 

gunshot, and she ran to the back of the house where she saw 

Nunez holding a rifle. Nunez was reluctant to give up the 

firearm, but one of his children was eventually able to wrestle it 

away from him. The child then threw the rifle in a swimming 

pool. 

Deborah ran to Joe’s bedroom and found him on the floor,

unresponsive. Joe suffered gunshot wounds to his chest and the 

back of his head, both of which were fatal. There were no signs 

that Joe had been in a struggle before he was shot. 

According to one of his children, Nunez had recently been 

mourning the death of a family member and appeared depressed. 

The child had seen Nunez drinking the day before the shooting. 

Another child said Nunez becomes paranoid when he drinks 

alcohol. 

1 We take many of the facts from our prior nonpublished 

opinion in this case, People v. Nunez (Mar. 6, 2018, B284222)

[nonpub. opn.].

2 We refer to Deborah Nava and Joe Nava by their first 

names for the sake of clarity. 
3

Nunez initially told police that a stranger shot Joe and 

then ran out the back of the house. In a subsequent interview, 

he said he was drunk and high at the time of the shooting, and he 

did not “remember anything.” After an officer remarked that it 

was “obvious” he shot Joe, Nunez claimed Joe threatened his life, 

he then went to Joe’s room with his rifle, and the gun fired when 

Joe tried to grab the weapon. Nunez recounted a similar story at 

trial. He could not explain how Joe suffered a gunshot wound to 

the back of the head. 

A jury found Nunez guilty of first degree murder and found 

true that he personally and intentionally discharged a firearm, 

causing great bodily injury and death within the meaning of 

Penal Code section 12022.53, subdivisions (b), (c), and (d).3 The 

court sentenced him to 25 years to life for the first degree murder 

and 25 years to life for the firearm enhancement pursuant to 

section 12022.53, subdivision (d). The court imposed and stayed 

enhancements under section 12022.53, subdivisions (b) and (c).

Nunez appealed, and this court affirmed the judgment of

conviction. (See People v. Nunez, supra, B284222.) However, we 

remanded the case so the trial court could exercise its discretion

whether to strike the firearm enhancement allegations pursuant 

to section 12022.53, subdivision (h). 

On remand, Nunez filed a resentencing memorandum 

requesting the court strike the firearm enhancement allegations. 

In support, he submitted evidence showing he has a history of 

depression and psychosis linked to substance abuse, including 

two involuntary hospitalizations. 

3 All further undesignated statutory references are to the 

Penal Code. 
4

Nunez also submitted a report from a psychologist, Harry 

Goldberg, who performed a psychological exam of Nunez prior to 

trial. According to the report, Nunez told Goldberg he used 

excessive amounts of alcohol and methamphetamines the day of 

the murder. His brother-in-law, Joe, confronted him about his 

drug use and the fact that he was not spending time with his 

family. They had an exchange of words, and Joe said, “I don’t 

want this shit anymore.” Nunez grabbed his rifle and intended to 

threaten Joe, but he had no recollection of what happened next. 

Goldberg diagnosed Nunez with moderate major 

depression, severe alcohol-use disorder, and severe 

amphetamine-use disorder. Goldberg explained that Nunez’s 

depression triggers his substance abuse, which then triggers a 

methamphetamine/alcohol induced psychotic disorder. Goldberg 

opined that a “combination of his depression and intoxication 

were the two factors that led to the shooting incident. 

His psychiatric disorder, primarily his Major Depression was a 

major contributing factor during the commission of his crime.” 

Nunez additionally submitted a letter to the court in which 

he took responsibility for the murder and expressed remorse. 

He claimed to no longer be “that same impulsive and careless 

man that committed that terrible crime.” Nunez also included

evidence showing he had participated in and completed 

numerous programs while incarcerated, including courses on 

restorative parenting, addiction/substance abuse, anger 

management, and domestic violence. 

Nunez’s probation report showed an extensive criminal 

history, including a sustained juvenile petition for two counts of 

assault with a semiautomatic firearm (§ 245, subd. (b)). As an 

adult, Nunez suffered a felony conviction for burglary in 1993
5

(§ 459), and a felony conviction for possession of a firearm by a 

felon in 2009 (§ 12021, subd. (a)(1)). He was also convicted of 12 

misdemeanors, including for battery (§ 242) and two domestic 

violence offenses (§§ 233.6, subd. (a), 243, subd. (e)(1)). 

At the resentencing hearing, Nunez’s counsel represented 

that, as a juvenile, Nunez committed assault with an automobile, 

not assault with a semiautomatic firearm. The prosecution made 

the same representation in its sentencing memorandum. 

The court declined to strike the firearm enhancement

allegations and sentenced Nunez to an aggregate term of 50 

years to life. The court explained its decision: “It is a brutal 

crime. He shot him in the chest for no reason at all 

claiming . . . there’s some depression. I don’t know how 

depression leads somebody to then take a rifle and shoot 

somebody. But assuming like that was in and of itself, he then 

shot him in the back of the head. Then he lied to the police. 

He actually said a stranger shot [the victim]. I don’t think that 

depression or drug abuse explains that . . . . [¶] . . . Neither the 

defendant nor the victim had any defensive wound. So, to me, 

this is one of those incredibly shocking cases.” 

The court further noted Nunez’s extensive criminal history 

“dating back to 1988 in which at least from the evidence I have is 

a gun was used. But even if the gun wasn’t used, obviously there 

were two assaults that allegedly were committed back in 1988. 

[¶] Since then, he has engaged in domestic violence batteries, a 

felony burglary, felon with a firearm in 2009. So just six years 

before this happened he was with a firearm when he shouldn’t 

have been with a firearm.” The court noted Nunez’s history of 

substance-induced psychotic episodes, but found it was not 

sufficiently mitigating to justify striking the firearm allegations.
6

Nunez timely appealed. 

DISCUSSION

On appeal, Nunez argues the trial court abused its 

discretion in declining to strike the firearm enhancement 

allegations under section 12022.53, subdivision (h). We disagree.

We review a court’s discretionary decision to dismiss or 

strike a sentencing allegation for abuse of discretion. (People v. 

Carmony (2004) 33 Cal.4th 367, 373 (Carmony); People v. Pearson

(2019) 38 Cal.App.5th 112, 116 (Pearson).) An abuse of discretion 

occurs when the court is unaware of its discretion, considers 

impermissible factors, or acts arbitrarily, capriciously, or in a 

patently absurd manner. (Carmony, supra, 33 Cal.4th at p. 378.) 

“ ‘ “In reviewing for abuse of discretion, we are guided by 

two fundamental precepts. First, “ ‘[t]he burden is on the party 

attacking the sentence to clearly show that the sentencing 

decision was irrational or arbitrary. [Citation.] In the absence of 

such a showing, the trial court is presumed to have acted to 

achieve legitimate sentencing objectives, and its discretionary 

determination to impose a particular sentence will not be set 

aside on review.’ ” [Citation.] Second, a “ ‘decision will not be 

reversed merely because reasonable people might disagree. 

“An appellate tribunal is neither authorized nor warranted in 

substituting its judgment for the judgment of the trial judge.” ’ ”

[Citation.] Taken together, these precepts establish that a trial 

court does not abuse its discretion unless its decision is so 

irrational or arbitrary that no reasonable person could agree with 

it.” [Citation.]’ ” (Pearson, supra, 38 Cal.App.5th at p. 116, 

quoting Carmony, supra, 33 Cal.4th at pp. 376–377.)

Here, the trial court did not abuse its discretion in 

declining to strike the firearm enhancement allegations. 
7

As Nunez seems to concede, the circumstances of his present 

offense are particularly brutal. (See Cal. Rules of Court, rule 

4.421(a)(1) [that the crime involved great violence or disclosed a 

high degree of callousness are circumstances in aggravation].) 

Nunez inflicted two fatal gunshot wounds on his brother-in-law,

without any apparent provocation, while his family members 

were in the same house. His child then had to wrestle the 

murder weapon away from him. Nunez also has an extensive 

criminal history, including several crimes of violence, which 

began while he was a juvenile and continued through his entire 

adult life. (See Cal. Rules of Court, rule 4.421(b) [a defendant’s 

criminal history can be a circumstance in aggravation].) On this 

record, we cannot say the court’s decision not to strike the 

enhancement allegations was “so irrational or arbitrary that no 

reasonable person could agree with it.” (Carmony, supra, 33

Cal.4th at p. 377.) 

Nunez asserts the court did not give sufficient weight to his 

remorse or Goldberg’s opinion that the murder was caused by his 

depression and substance abuse disorders. The trial court, 

however, had valid reasons to discount such factors. For

example, although Nunez eventually displayed remorse for 

shooting Joe, he initially denied any involvement and later 

partially blamed the victim for it. (See Cal. Rules of Court, rule 

4.423(b)(3) [that the “defendant voluntarily acknowledged 

wrongdoing before arrest or at an early stage of the criminal 

process” is a factor in mitigation (italics added)].) Moreover, 

Goldberg’s report did not meaningfully address Nunez’s prior 

violent crimes or all the circumstances of the murder, including 

the fact that Nunez shot Joe in the back of the head and then lied 

to police. The court did not act arbitrarily or irrationally in 
8

concluding these circumstances were insufficient to warrant 

striking the firearm enhancement allegations. 

Nunez next contends the trial court erred by failing to 

consider evidence showing he made positive progress and 

rehabilitation while incarcerated. (See People v. Warren (1986) 

179 Cal.App.3d 676, 689 [“postconviction behavior . . . must be 

considered by a trial court in determining whether or not to 

exercise [§] 1385 discretion in favor of striking enhancements”].)

Absent a contrary affirmative showing in the record, however, we 

presume the trial court considered the relevant sentencing 

factors when it determined whether to strike or dismiss the 

firearm enhancement. (Pearson, supra, 38 Cal.App.5th at p. 

117.) Here, the record does not affirmatively disclose that the 

court ignored evidence of Nunez’s postconviction behavior while 

incarcerated. Accordingly, we presume it properly considered 

such evidence. 

Finally, we reject Nunez’s assertion that the trial court

abused its discretion to the extent it erroneously believed his 

juvenile offenses involved the use of a firearm. Although Nunez’s

counsel and the prosecutor represented that the offenses instead 

involved an automobile, the probation report indicates the 

sustained petitions were for assaults with a semiautomatic 

firearm in violation of section 245, subdivision (b). The trial court 

did not abuse its discretion in crediting the probation report over 

counsels’ representations. In any event, the court acknowledged 

that even if counsels’ representations were true, its decision 

would stand given it is undisputed that Nunez committed some 

form of assault. The court did not err on this basis.

DISPOSITION

We affirm the judgment. 
9

BIGELOW, P. J.

WE CONCUR:

GRIMES, J.

STRATTON, J.