People v. Diaz CA2/2 ( 2021 )


Menu:
  • Filed 6/23/21 P. v. Diaz CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
    not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                                B306058
    Plaintiff and Respondent,                         (Los Angeles County
    Super. Ct. No. BA431915)
    v.
    EZEQUIAS DIAZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Douglas W. Sortino, Judge. Affirmed.
    Johanna Pirko, 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, Assistant
    Attorney General, Noah P. Hill and Stephanie C. Santoro,
    Deputy Attorneys General, for Plaintiff and Respondent.
    Defendant and appellant Ezequias Diaz (defendant)
    appeals from his conviction of attempted murder.1 He contends
    that the prosecutor engaged in prejudicial misconduct during
    closing argument by misstating the law, that counsel rendered
    ineffective assistance by failing to object, and that the trial court
    improperly relied on the facts underlying the enhancement
    allegations to impose the aggravated term. Finding defendant’s
    contentions forfeited or without merit, we affirm the judgment.
    BACKGROUND
    Defendant was charged with the attempted murder of
    Guadalupe Sanchez in violation of Penal Code sections 187 and
    664, subdivision (a).2 It was alleged that the attempted murder
    was willful, deliberate, and premeditated; that defendant
    personally inflicted great bodily injury upon the victim within the
    meaning of section 12022.7, subdivision (a); and that he used a
    deadly and dangerous weapon, a car, in the commission of the
    offense within the meaning of section 12022, subdivision (b)(1). A
    jury convicted defendant of the attempted murder but found not
    true the allegation that it was willful, deliberate and
    premeditated. The jury found true the allegations of great bodily
    injury and the use of a deadly weapon. The trial court sentenced
    1     The information filed in this case has defendant’s name as
    Jose Antonio Ruiz, which was an alias defendant used at his
    place of employment. We found nothing in the record to show
    that the information was ever amended to reflect defendant’s
    true name, but the remainder of the record, including the
    minutes and the verdict, refers to defendant’s true name.
    2     All further statutory references are to the Penal Code,
    unless otherwise indicated.
    2
    defendant to a total of 13 years in prison, consisting of nine years
    for the attempted murder, plus three years for the great bodily
    injury enhancement and one year for the use of a deadly weapon.3
    Defendant filed a timely notice of appeal from the
    judgment.
    Prosecution evidence
    Sanchez testified that on an evening in August 2014, he
    bought a beer at Jerry’s Liquor store on his way home from work,
    which he took outside and drank in front of the liquor store.
    During this time a man he did not know came out of the store
    and ran him over with a car. Sanchez could not remember the
    incident very well. He did recall waking up in the hospital,
    where he stayed for about three weeks undergoing surgeries. His
    leg and chest were injured, and he lost a testicle. It took him
    about six months to recuperate, during which time he could not
    work and had to use crutches. At the time of trial in early 2020,
    his leg still hurt, and he was able to work only part time.
    Sanchez was shown a surveillance video of the incident, in
    which he was able to identify himself and the man who ran him
    over. Sanchez remembered that he and the man had argued, but
    he could not remember what they argued about. Sanchez denied
    that the video showed him reaching into his backpack during the
    3     In a footnote in respondent’s brief it is noted that the
    abstract of judgment is not included in the clerk’s transcript.
    Within the footnote there appears to be a motion pursuant to
    rules 8.155(a) and 8.340(c) of the California Rules of Court to
    augment the record with the abstract. However, as this motion
    does not comply with rule 8.155(a), and respondent has not
    claimed to have requested a copy of the abstract from the
    superior court, we deny the motion.
    3
    encounter with the man but said it showed him just adjusting the
    strap. Sanchez denied that he had a gun or said to the man that
    he had a gun and was going to shoot him, but he could not
    otherwise remember what he said or did not say. Sanchez
    remembered that he had $200 with him that day, and when the
    hospital returned his property, the $200 was included.
    Los Angeles Police Officer Brendan Flynn arrived at Jerry’s
    Liquor store soon after Sanchez had been injured. He testified to
    having observed tire marks on Sanchez’s abdomen and to having
    recovered Sanchez’s testicle near where he lay.
    Firefighter/paramedic Brad Ibanez arrived on the scene a few
    minutes later finding Sanchez impaired, altered and combative.
    Ibanez stabilized Sanchez and put him in restraints. He
    observed that Sanchez had facial abrasions, road rash on the
    right forearm, severe road rash and bruising to his abdomen, a
    testicular sac rupture, and blood in his mouth.
    Defendant had gone to Jerry’s Liquor store that evening
    with his friend and coworker Alba Florian. Florian testified that
    the two of them went there in defendant’s car to buy beer. While
    there they saw a man whom they did not know (Sanchez) right
    outside the door. When they came out with their beer, the man
    started bothering them and appeared to be drunk. Sanchez
    mostly bothered Florian, seeming to flirt, but using foul
    language. Defendant told him to relax, to go away and stop
    bothering her, but Sanchez ignored defendant and kept insulting
    Florian. Sanchez also insulted defendant and behaved as though
    he wanted to fight. Defendant and Sanchez began arguing, and
    defendant, no longer calm, appeared to be about to fight Sanchez.
    Florian denied that the two men physically fought or that there
    was any punching or kicking. Florian tried to pull defendant
    4
    away, saying, “Let’s go,” and claimed she saw another man
    approach, apparently to help Sanchez. Later, she testified that
    the second man came after she got into defendant’s car, that
    defendant followed her a short time later, and that he did not
    punch or kick anyone. She claimed that as defendant walked
    away, Sanchez continued to insult defendant, and that as
    defendant was about to start the car, Sanchez walked in front of
    it, making challenging hand gestures and preventing them from
    going forward. Florian ducked down, closed her eyes, and did not
    see anything until they were out of the parking lot. She began
    crying and defendant told her to be quiet. They did not speak at
    all after that and did not discuss the incident.
    During her testimony Florian was reminded of her
    interview with Detective Reyes about four months after the
    incident, in which she said that just before she bent forward, she
    screamed and then heard a bump. Defendant then backed up
    and she shouted, “You killed him,” or something to that effect.
    Defendant told her to stop it and “shut up,” and that the man
    stood up. Florian told Detective Reyes that when defendant
    backed up she heard a crack, she screamed, asked defendant
    what happened, and begged him to stop. Defendant yanked her
    hair and said, “Calm down now.” She also told Detective Reyes
    that she was afraid of defendant, as she found him intimidating.
    Sometime after her interview with the detective, a
    coworker told defendant and Florian that the police were looking
    for him, and he had seen them on television. Defendant told
    Florian that he had not realized that he had run over the man
    and said he was just trying to scare the man. Defendant stopped
    going to work once he found out the police were looking for him.
    He did not answer her calls for two or three months. When they
    5
    did speak months later, she told defendant that Detective Reyes
    wanted to talk to him and suggested defendant comply. He
    refused, saying that he was not at fault. At some point,
    defendant told Florian that he was in Salt Lake City and later
    that he had moved to Las Vegas.
    Surveillance videos were played in court as Florian
    described the action.4 She and defendant were identified as they
    walked into the liquor store and back out. They are seen sitting
    down as they begin drinking their beers. Sanchez, with his
    backpack, is seen on the sidewalk, also drinking a beer. A man in
    a blue shirt stands next to Sanchez. Another angle shows Florian
    and defendant walking out of the liquor store with Sanchez
    leaning against a wall at the bottom of the screen.
    After awhile Sanchez is seen as he starts bothering
    defendant and Florian. Defendant is seen throwing a beer bottle
    at Sanchez and punching and kicking him. The man in the blue
    shirt is no longer seen in the video when defendant was punching
    and kicking Sanchez.
    Defense evidence
    Blood alcohol expert
    The defense called a forensic chemist who had reviewed
    Sanchez’s laboratory results from his hospital record. Sanchez’s
    blood was drawn at 9:35 p.m., tested and found to have a blood
    alcohol content that was high for a human being, the equivalent
    of a 0.267 blood alcohol level if tested using whole blood rather
    than plasma (more than three times the 0.08 percent presumed
    as being impaired to drive). A 160 pound man would have fully
    4     The exhibits have not been transmitted to this court for our
    review. We thus summarize the action from the testimony of
    Sanchez, Florian and defendant.
    6
    absorbed the alcohol equivalent to 11 and one-half 12-ounce, 4
    percent (light) beers.
    Defendant’s testimony
    Defendant testified that on August 1, 2014, he had been
    employed for five years as the manager of the clothing company
    where he and Florian worked. Though married, defendant was
    dating Florian at the time. On direct examination defendant
    testified that he drove to work that day in his white Ford
    Explorer SUV, and after work he gave a ride to Florian. Between
    8 and 8:30 p.m., they stopped to buy beers and were sitting on the
    curb in front of the liquor store drinking them when Sanchez,
    who appeared to be intoxicated, approached them and asked for
    money. Sanchez became hostile and cursed at them when
    defendant said he did not have money, and Florian told him to go
    away. Defendant then stood, faced Sanchez and told him not to
    be disrespectful. Sanchez responded, “What? Do you want to
    fight with me?” When Florian urged defendant to ignore Sanchez
    and tried to lead him away, Sanchez responded, “What? Are you
    going to hide behind a woman?” Defendant told Florian to get in
    the car; and because Sanchez continued to provoke and insult
    him using foul language, defendant grabbed a bottle and threw it
    at Sanchez but missed him. Defendant also tried to kick Sanchez
    but claimed that he did not remember making contact. When
    shown portions of the surveillance video, defendant admitted that
    the video showed him throwing a beer bottle at Sanchez, kicking
    him once and striking him in the chest once.
    Defendant also claimed that as Sanchez moved his
    backpack from his back to his front, Sanchez said he was going to
    kill defendant and that he had a gun in his backpack. Defendant
    saw Sanchez trying to reach into the backpack, felt afraid,
    7
    panicked, and angry. He quickly got into his car and backed out
    of his parking spot. Defendant did not see a gun but saw Sanchez
    moving his hands in a challenging manner, so defendant drove
    the car toward Sanchez, accelerated, and ran him over. Because
    there was a wall in front of the car and no exit from the parking
    lot in that direction, defendant backed up in order to get away.
    He claimed that it all happened in seconds.
    Defendant did not tell Florian that Sanchez had a gun or
    that he threatened to kill him, explaining that she was
    hysterical, crying and bent down. He denied pulling her hair,
    claiming that he just put his hand on her head and told her to
    calm down. When a coworker told him about the television
    broadcast, defendant did not go to the police because he was
    afraid they would not believe his story. He moved to Salt Lake
    City for about two months, then moved to Las Vegas when his
    former employer moved his business. Defendant was eventually
    arrested in Las Vegas about two years later.
    On cross-examination, defendant testified that Sanchez
    approached him and Florian about 20 minutes after they arrived,
    and Sanchez’s behavior toward Florian made defendant angry
    because he was disrespecting a woman. Defendant also claimed
    to be afraid of Sanchez.5 Sanchez continued to challenge him and
    insult them. Defendant testified that he had no other option and
    explained, “If he’s disrespecting me and he’s disrespecting me,
    obviously, I had to react in some way.” In response to the
    prosecutor’s question whether he had no choice but to punch and
    kick a man who was insulting him, defendant said, “Because he
    5     Defendant never saw two men, testifying that only one man
    confronted him.
    8
    told me he wanted to fight.” Defendant agreed that he wanted to
    fight Sanchez, because “[h]e had insulted me so many times that
    it’s obvious that I had to fight him.” Defendant explained that he
    threw the bottle to “shut [Sanchez] up” when he started “cussing
    [him] out”; and although Sanchez was across the parking lot
    when he threw it, defendant “could hear what he was saying.”
    Sanchez kept on talking and making his hand motions. The
    insults and challenging hand motions were “making” defendant
    react in anger. Defendant then went to Sanchez and kicked him,
    but when that did not quiet him, defendant punched him.
    Defendant claimed Sanchez swung at him; and although Sanchez
    did not connect and hit defendant, it was not defendant’s decision
    to fight “with everything he was saying to me, he was trying to
    provoke a fight with me and you can’t ignore that. One can’t
    ignore that with someone you don’t even know.”
    After defendant told Florian to get in the car, he claimed
    that he got into his car and put it in reverse. Sanchez “was
    already in front of the car” and waving his hands back and forth
    above his head. Defendant denied that Sanchez remained where
    he had left him, some distance from the car. In still photographs
    of the parking lot, defendant identified both his SUV and
    Sanchez, who was standing with his hands down at his side and
    empty space around him. When asked whether he aimed his car
    directly at Sanchez, defendant testified, “I didn’t exactly aim it.
    It was rather that the person was provoking me. It was a matter
    of seconds. It wasn’t that I aimed it or planned anything. It was
    just a matter of seconds.” Defendant admitted that when he saw
    Sanchez in front of him, he accelerated, despite knowing that it
    was the opposite direction from the only exit from the parking lot.
    Defendant explained that he was looking at Sanchez to see if he
    9
    was going to get the weapon he said he had. Sanchez was
    standing still, but his hands were moving.
    Defendant admitted to having run over Sanchez because
    Sanchez continued to provoke him. Although defendant could not
    hear what Sanchez was saying because the windows were up, he
    could see that Sanchez continued to talk. Defendant agreed that
    the video showed that the SUV ran completely over Sanchez’s
    body with the right front tire. Defendant explained that although
    he knew that he had run over Sanchez, having felt the car go over
    him, defendant did not know “how the action took place.” He also
    denied that he felt the tires go over Sanchez’s body and claimed
    that he did not feel anything when he was going forward.
    Defendant also claimed that although he knew he had hit
    Sanchez, he thought Sanchez had just been pushed, causing him
    to fall in front of the car, making it necessary for defendant to put
    his car in reverse. However, defendant then admitted he thought
    he had run over Sanchez going forward, which made him feel
    that he had to flee, so he backed up in a panic. Defendant
    explained that it was when he backed over Sanchez that he felt
    his car going over something. Knowing he had run over Sanchez
    a second time, defendant drove away but claimed he drove away
    because he saw Sanchez stand up.
    Defendant acknowledged that he “partly” understood that
    he had done something wrong but pointed out that he was
    provoked. Defendant explained that he did not worry about
    Sanchez or feel bad, because Sanchez had threatened to kill
    defendant. He explained that he did not stay and call the police
    because the police would sometimes believe the victim more than
    the person who was aggressive. Defendant later “felt partly
    guilty for doing that, for, in a way, taking his life and he ruined
    10
    mine too.” Defendant drove away and refused to discuss the
    event with Florian. He never told her that Sanchez was trying to
    pull out a gun or that he had threatened to shoot defendant.
    DISCUSSION
    I.    Alleged prosecution misconduct
    Defendant contends that his conviction should be reversed
    because the prosecutor engaged in prejudicial misconduct by
    misstating the law during rebuttal closing argument. Turning to
    defendant’s claim of self-defense, the prosecutor stated, “This is a
    perfect case. Self-defense is one of those things that you have to
    decide.” He continued:
    “Do you think this is okay, to do what he did? I can’t
    hold him responsible. The police can’t hold him
    responsible. The judge can’t hold him responsible.
    This is in your hands, as our members of our
    community, to say, no, you’ve crossed the line with
    that one. Okay? [¶] And it’s five years coming. He
    thought this day was never going to come. He
    thought this would all just blow over if he just
    disappeared to Nevada or wherever he went. Okay?
    But presumption of innocence ends now because
    you’ve heard the evidence now and you have to make
    a decision about what kind of conduct is going to be
    okay.”
    Defendant notes the phrase, “presumption of innocence
    ends now,” standing alone, and claims a misstatement of the law,
    as the presumption of innocence continues into deliberations
    until the jury reaches a verdict. (People v. Dowdell (2014) 
    227 Cal.App.4th 1388
    , 1407-1408.) However, defendant
    acknowledges that his trial counsel did not object or request an
    admonition. “As a general rule a defendant may not complain on
    11
    appeal of prosecutorial misconduct unless in a timely fashion—
    and on the same ground—the defendant [requested] an
    assignment of misconduct and [also] requested that the jury be
    admonished to disregard the impropriety. [Citation.]
    Additionally, when the claim focuses upon comments made by the
    prosecutor before the jury, the question is whether there is a
    reasonable likelihood that the jury construed or applied any of
    the complained-of remarks in an objectionable fashion.” (People
    v. Samayoa (1997) 
    15 Cal.4th 795
    , 841.)
    It is clear that the trial court would have given the jury the
    appropriate admonition had it been requested. During the
    prosecutor’s opening summation, when defense counsel objected
    to a statement, the trial court overruled the objection but
    admonished the jury as follows: “[T]o the extent there is a
    conflict with the law between what the lawyer is saying and the
    instructions I read, it’s the instructions that control. During
    arguments, the lawyers make arguments about how you should
    construe things and how you should find things, but it’s up to you
    to make those decisions and follow the law that I give to you.” “It
    is fundamental that jurors are presumed to be intelligent and
    capable of understanding and applying the court’s instructions.”
    (People v. Gonzales (2011) 
    51 Cal.4th 894
    , 940.) We thus agree
    with respondent that the issue is forfeited.
    Defendant contends that despite counsel’s failure to object
    or request an admonition, reversal is required because the failure
    amounted to a denial of effective assistance of counsel as
    guaranteed by the Sixth Amendment to the United States
    Constitution and article I, section 15 of the California
    Constitution. (See Strickland v. Washington (1984) 
    466 U.S. 668
    ,
    686-688.) A defendant bears a heavy burden to demonstrate both
    12
    counsel error and resulting prejudice. (Id. at p. 687.) A
    reviewing court may proceed directly to the issue of prejudice if it
    is easier to dispose of an ineffectiveness claim on that basis.
    (Ibid.; People v. Fairbank (1997) 
    16 Cal.4th 1223
    , 1241.) Such is
    the case here.
    Defendant must affirmatively prove prejudice by
    demonstrating a reasonable probability that the result of the
    proceeding would have been different absent the alleged error.
    (Strickland v. Washington, 
    supra,
     466 U.S. at p. 694.) “A
    reasonable probability is a probability sufficient to undermine
    confidence in the outcome.” (Ibid.) Defendant attempts to show
    prejudice by arguing that prejudice is shown by the jury’s finding
    the allegation that the attempted murder was committed
    willfully, deliberately, and with premeditation to be not true. He
    argues that this not true finding demonstrates that “[t]he jury
    had doubts about the prosecution’s case and may have questioned
    whether [defendant] intended to kill Sanchez when he struck him
    with his truck.” (Italics added.)
    “A defendant must prove prejudice that is a ‘“demonstrable
    reality,” not simply speculation.’” (People v. Fairbank, 
    supra,
     16
    Cal.4th at p. 1241.) Defendant has failed to do so here. When
    the prosecutor’s comment is viewed with the jury instructions
    given, the more reasonable inference to be drawn from the jury’s
    not true finding is that the jurors understood and took seriously
    their roles by following the trial court’s instruction to presume
    defendant innocent until satisfied that the prosecutor proved
    premeditation beyond a reasonable doubt. The jury was so
    instructed prior to the prosecutor having uttered the disputed
    phrase. The first instruction was CALCRIM No. 200, which
    included: “You must follow the law as I explain it to you, even if
    13
    you disagree with it. If you believe that the attorney’s comments
    on the law conflict with my instructions, you must follow my
    instructions.” Shortly thereafter, the trial court read CALCRIM
    No. 220, which included:
    “A defendant in a criminal case is presumed to be
    innocent. This presumption requires that the People
    prove a defendant guilty beyond a reasonable doubt.
    Whenever I tell you the People must prove
    something, I mean they must prove it beyond a
    reasonable doubt. [¶] Proof beyond a reasonable
    doubt is proof that leaves you with an abiding
    conviction that the charge is true. The evidence need
    not eliminate all possible doubt because everything in
    life is open to some possible or imaginary doubt. [¶]
    In deciding whether the People have proved their
    case beyond a reasonable doubt, you must impartially
    compare and consider all the evidence that was
    received throughout the entire trial. Unless the
    evidence proves the defendant guilty beyond a
    reasonable doubt, he is entitled to an acquittal and
    you must find him not guilty.”
    By the time final arguments began, the jury had been
    instructed no fewer than seven more times regarding the
    prosecution’s burden of proof beyond a reasonable doubt: See
    CALCRIM No. 601, regarding premeditation and deliberation;
    CALCRIM No. 603, regarding attempted voluntary manslaughter
    and heat of passion; CALCRIM No. 604, regarding imperfect self-
    defense; CALCRIM No. 3145, regarding personal use of a deadly
    weapon; CALCRIM No. 3160, regarding great bodily injury;
    CALCRIM No. 3470, regarding self-defense and defense of
    another; and CALCRIM No. 3517, regarding verdict forms.
    Defendant also suggests that the not true finding as to
    premeditation shows that without the prosecutor’s remark
    14
    regarding the presumption of innocence, at least one juror may
    have believed that he acted in self-defense. More likely the jurors
    found defendant guilty of attempted murder because they
    believed defendant’s testimony that he acted in anger, but they
    had a reasonable doubt about deliberation and premeditation.6
    Defendant admitted reacting to Sanchez because he was angry
    and felt disrespected, claiming that he had no other option
    because “[i]f he’s disrespecting me and he’s disrespecting me,
    obviously, I had to react in some way.” Defendant tried throwing
    a beer bottle at Sanchez, tried kicking and punching him, but the
    insults continued. Defendant admitted he ran over Sanchez
    because he had been provoked by Sanchez, who was directly in
    front of him waving his hands back and forth. Defendant
    admitted that he ran over Sanchez a second time in order to
    facilitate his escape from the scene.
    We cannot agree with defendant that without the
    prosecutor’s remark, the jury would have had reason to find that
    defendant acted in self-defense or imperfect self-defense.
    Defendant testified that he was walking away from Sanchez
    trying to get into his car as soon as possible at the time he saw
    Sanchez reached into his backpack, an action that Sanchez
    described as adjusting the strap on his backpack, not trying to
    unzip or reach into it. Since defendant failed to provide the
    surveillance videos, still photographs, or any other exhibits to
    this court for review, he also fails to present an adequate record
    for review on appeal and to affirmatively demonstrate error. (See
    6     The trial court read CALCRIM No. 601, which defines
    deliberation and premeditation including “[a] decision to kill
    made rashly, impulsively, or without careful consideration of the
    choice and its consequences is not deliberate and premeditated.”
    15
    People v. Whalen (2013) 
    56 Cal.4th 1
    , 84, disapproved on another
    point in People v. Romero and Self (2015) 
    62 Cal.4th 1
    , 44, fn. 17.)
    Error is never presumed from a silent record. (Denham v.
    Superior Court (1970) 
    2 Cal.3d 557
    , 564.) We thus assume that
    the video and still photographs would support the jury’s rejection
    of defendant’s claim of self-defense.7
    We conclude that overwhelming evidence shows that if
    defendant harbored any reasonable or unreasonable belief in the
    need for self-defense, it ended when defendant admittedly
    accelerated toward Sanchez upon seeing him standing at some
    distance with his hands visible and either down at his sides or
    waving in the air, and not reaching into his backpack. Any such
    belief also ended when defendant admittedly backed up knowing
    that he had run over Sanchez and had felt the car go over him.
    We conclude that if defense counsel erred, the error was
    harmless, and defendant has thus failed to demonstrate
    ineffective assistance of counsel.
    II.    Dual use of facts to aggravate term
    Defendant contends that the trial court improperly relied
    on the facts underlying the enhancement allegations to impose
    the high term, based on the provision in section 1170, subdivision
    (b), which provides that “the court may not impose an upper term
    by using the fact of any enhancement upon which sentence is
    imposed under any provision of law,” and on California Rules of
    7     We observe that at the sentencing hearing the court noted
    there was no evidence that a gun was recovered at the scene or in
    Sanchez’s backpack. The court also stated that the video did not
    show anything that could be construed as Sanchez reaching for
    something in the backpack.
    16
    Court, rule 4.420(c).8 In particular, defendant contends that the
    court’s comments at sentencing indicate that it relied upon the
    use of a car as a deadly weapon and upon Sanchez’s injuries in
    imposing the upper term, although the court also imposed a
    three-year great bodily injury enhancement under section
    12022.7, subdivision (a), and a one-year enhancement for the use
    of a deadly weapon pursuant to section 12022, subdivision (b)(1).
    Respondent asserts that defendant has forfeited this issue
    by failing to object at the sentencing hearing. Because improper
    dual use is not a jurisdictional error, “[a] party in a criminal case
    may not, on appeal, raise ‘claims involving the trial court’s failure
    to properly make or articulate its discretionary sentencing
    choices’ if the party did not object to the sentence at trial.
    [Citation.] The rule applies to ‘cases in which . . . the court
    purportedly erred because it double-counted a particular
    sentencing factor . . . .’” (People v. Gonzalez (2003) 
    31 Cal.4th 745
    , 751, quoting People v. Scott (1994) 
    9 Cal.4th 331
    , 353.)
    Defendant claims to have preserved the issue with an objection in
    his sentencing memorandum to the dual use of a car as a deadly
    weapon enhancement and as a factor in aggravation. However,
    defendant did not object to the dual use of facts underlying the
    great bodily injury enhancement. “Only a single aggravating
    8     California Rules of Court, rule 4.420(c) provides: “To
    comply with section 1170(b), a fact charged and found as an
    enhancement may be used as a reason for imposing a particular
    term only if the court has discretion to strike the punishment for
    the enhancement and does so. The use of a fact of an
    enhancement to impose the upper term of imprisonment is an
    adequate reason for striking the additional term of
    imprisonment, regardless of the effect on the total term.”
    17
    factor is required to impose the upper term . . . .” (People v.
    Osband (1996) 
    13 Cal.4th 622
    , 728.) Thus defendant has
    forfeited his challenge based upon facts relating to great bodily
    injury.
    Regardless, the trial court cited many facts in aggravation,
    not just those supporting the two enhancements. The reviewing
    court looks at whether the trial court could have based the
    aggravating factor on facts other than those supporting the
    enhancement, and if so, the sentence may stand. (People v.
    Garcia (1995) 
    32 Cal.App.4th 1756
    , 1775.) Here, the court stated
    that it had reviewed the defense sentencing memorandum and
    then expressed many reasons for finding that granting probation
    was not justified. The court then applied those reasons and
    others to support the high term. In essence, the court expressed
    the intention to impose the high term on the ground that this was
    an aggravated attempted murder. The court found this case “as
    serious [as] you can get in terms of charge,” not just attempted
    murder but “an incredibly aggravated, violent attempted murder
    with a vehicle.” Thus the court considered, more than
    defendant’s use of a car as a deadly weapon to inflict great bodily
    injury, but rather the extreme violence with which defendant
    committed his crime.
    The sentencing court may appropriately base an
    aggravated term on facts surrounding the defendant’s crime that
    exceed the minimum necessary to establish the offense or
    enhancement. (Cf. People v. Castorena (1996) 
    51 Cal.App.4th 558
    , 561 [“‘while an element of this crime is gross negligence,
    defendant’s conduct exceeded even the word gross’”].) Here, the
    court acknowledged that some of the facts were already part of
    the offense and the enhancement allegations, but stated that far
    18
    more facts were proven in this case than the minimum needed to
    establish an attempted murder, an intent to kill, or great bodily
    injury. “Some physical pain or damage, such as ‘[a]brasions,
    lacerations, and bruising can constitute great bodily injury.’”
    (People v. Quinonez (2020) 
    46 Cal.App.5th 457
    , 464.) Here, the
    court listed Sanchez’s injuries depicted in photographs taken at
    the hospital, such as severe bruising and scrapes from the knees
    through the groin area and up through his torso, as well as the
    permanently dismembered testicle, which clearly exceeded
    healable abrasions, lacerations, and bruising necessary to
    establish great bodily injury.
    Great violence is a separate factor that may appropriately
    be considered in aggravation of a violent crime, where great
    violence is not an element of the crime. (See People v. Garcia
    (1989) 
    209 Cal.App.3d 790
    , 794 [forcible rape]; Cal. Rules of
    Court, rule 4.421(a)(1).) Here, the trial court considered the
    extreme violence of defendant’s conduct, explaining that during
    trial there were comments indicating that defendant ran over
    Sanchez at least twice, although when viewing the surveillance
    video the court perceived wheels going over him at least three
    times and then dragging Sanchez for a period of time. The court
    noted that at “every step of the way [defendant] chose to make
    this situation worse and increase the violence.” Defendant was
    the aggressor in the fight, while Sanchez appeared to be acting
    defensively.
    The court acknowledged that Sanchez was probably
    annoying and drunk, and that he made disparaging remarks
    about Florian, but “[n]one of that, in any way, justifies the
    defendant’s reactions thereafter.” The trial court observed that
    defendant could have left by backing out of his parking place and
    19
    turning toward the parking lot exit adjacent to his parking space,
    but he did not. Without disputing the jury’s verdict the court also
    pointed out that there was sufficient evidence to support
    premeditation and deliberation, which would have resulted in a
    life term; thus the verdict gave defendant a significant break.
    In sum, the court did not rely simply on defendant’s use of
    his car as a deadly weapon or the infliction of great bodily injury
    on the victim to impose the high term, as defendant claims. We
    conclude that defendant forfeited at least one of his claims of dual
    use, and that in any event, the trial court did not err.
    DISPOSITION
    The judgment is affirmed.
    ________________________, J.
    CHAVEZ
    We concur:
    ________________________, Acting P. J.
    ASHMANN-GERST
    ________________________, J.
    HOFFSTADT
    20
    

Document Info

Docket Number: B306058

Filed Date: 6/23/2021

Precedential Status: Non-Precedential

Modified Date: 6/23/2021