People v. Tirado CA4/1 ( 2022 )


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  • Filed 8/25/22 P. v. Tirado CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
    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 This opinion has not been certified for publication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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                          D079572
    Plaintiff and Respondent,
    v.                                                          (Super. Ct. No. SCS318143)
    JULIO M. TIRADO,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Albert T. Harutunian III, Judge. Remanded.
    Siri Shetty, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Charles C. Ragland, Assistant Attorney General, and
    Arlene Sevidal, Randall D. Einhorn and Susan Elizabeth Miller, Deputy
    Attorneys General, for Plaintiff and Respondent.
    I
    INTRODUCTION
    A jury convicted Julio M. Tirado of assault on a peace officer by means
    likely to produce great bodily injury (Pen. Code,1 § 245, subd. (c); count 1),
    battery on a peace officer with injury (§ 243, subd. (c)(2); count 2), and driving
    under the influence of a drug (Veh. Code, § 23152, subd. (f); count 3). After
    noting several circumstances in aggravation, the trial court sentenced Tirado
    to the upper term of five years on count 1 and 180 days on count 3 to run
    consecutive, under former section 1170. It also imposed the upper term of
    three years on count 2 and stayed the sentence.
    On January 1, 2022, while Tirado’s appeal was pending, Senate Bill
    No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) went into effect. It amended
    section 1170 by limiting the trial court’s former broad discretion in
    sentencing. Section 1170 now restricts the trial court’s ability to consider
    certain aggravating factors at sentencing and establishes the middle term as
    the presumptive sentence. (§ 1170, subds. (b)(1) & (2).)
    Tirado raises two issues on appeal. First, he contends that substantial
    evidence does not support his conviction for assault on a peace officer by
    means likely to produce great bodily injury. Second, he requests that we
    remand the matter for resentencing due to the recent changes to section 1170
    under Senate Bill 567. We find that substantial evidence supports Tirado’s
    conviction. However, we remand the matter for resentencing in light of
    Senate Bill 567.
    1     Further section references are to the Penal Code unless otherwise
    specified.
    2
    II
    FACTUAL AND PROCEDURAL BACKGROUND
    On May 14, 2021, a border patrol agent witnessed Tirado driving
    northbound against traffic in the emergency lane of the southbound side of
    Interstate 5. The agent called 9-1-1.
    Officer Erik Smith responded to the call. Officer Smith observed a van
    traveling northbound at a high rate of speed in the number 1 and 2
    southbound lanes of Interstate 5. Officer Smith drove north on the
    northbound lanes, paralleling the van.
    Officer Smith verbally commanded Tirado to stop or pull over to the
    center divider using his patrol vehicle’s loudspeaker, but Tirado initially did
    not slow down. Tirado eventually stopped the vehicle, exited, and ran
    through lanes of oncoming traffic. Officer Smith instructed Tirado to
    approach the center divider, and he ultimately complied.
    As Tirado approached Officer Smith, Tirado “appeared very scared or
    terrified of [Officer Smith].” During the interaction with Tirado, Officer
    Smith witnessed multiple, objective signs of possible drug impairment.
    Officer Smith placed Tirado under arrest. Officer Smith placed Tirado
    in the right rear seat of a cageless patrol vehicle,2 and another officer, Officer
    Huoth, sat in the left rear seat next to Tirado. Officer Smith sat in the
    driver’s seat. The officers used a restraining strap to keep Tirado’s handcuffs
    towards the door and utilized a standard seatbelt. The officers did not
    restrain Tirado’s legs.3
    2     A cageless patrol vehicle contains no partition between the officers in
    the front of the vehicle and the subjects in the rear of the vehicle.
    3     Officer Smith testified that officers do not utilize leg restraints unless a
    detainee exhibits “extreme combative behavior.”
    3
    As Officer Smith drove back to the police station, he experienced “what
    felt like a kick” to the back of his head. Officer Smith testified that the strike
    “felt like a bottom of a shoe.” Once he felt the strike, he turned around and
    observed Officer Huoth “pulling [Tirado’s] legs down and back to the
    floorboard.”
    During this incident, Officer Huoth witnessed Tirado kick diagonally
    toward the headrest of the driver’s seat of the vehicle. He witnessed Tirado’s
    leg or foot connect with part of the seat and saw Officer Smith “lurch[ ]
    forward . . . quite a bit towards the steering wheel.” He saw Tirado kick
    about three times but did not see Tirado connect with the seat or Officer
    Smith more than once. Officer Huoth then, “used [his] hands and arms to
    push down . . . Tirado’s legs back toward his seat.” Officer Huoth did not see
    Tirado’s feet directly connect with the back of Officer Smith’s head. Officer
    Huoth testified that the entire incident lasted a second or two.
    After the incident, Officer Smith continued to drive back to the police
    station. Officer Smith said the kick “hurt.” He continued to have dull head
    pain until that afternoon. Later, he felt nauseous and vomited several times.
    He went to the hospital, and a doctor diagnosed him with a mild concussion.
    The doctor recommended limited duty, but Officer Smith returned to work
    the next day. Officer Smith did not feel any pain or symptoms the next day
    or any of the days following the incident.
    The People filed an amended information charging Tirado with assault
    on a peace officer by means likely to produce great bodily injury (§ 245,
    subd. (c); count 1) with a special allegation that he personally inflicted great
    bodily injury upon the officer (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8));
    battery on a peace officer with injury (§ 243, subd. (c)(2); count 2) with a
    special allegation that he personally inflicted great bodily injury upon the
    4
    officer (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); and driving under the
    influence of a drug (Veh. Code, § 23152, subd. (f); count 3).
    Tirado pled not guilty and denied all allegations.
    The jury found Tirado guilty on all three counts but found not true the
    allegations that he personally inflicted great bodily injury in the commission
    of counts 1 and 2.
    The probation report listed the following possible circumstances in
    aggravation: Tirado’s engagement in violent conduct indicated a serious
    danger to society (Cal. Rules of Court, rule 4.421(b)(1)), his prior convictions
    as an adult continued to be serious (id. at rule 4.421(b)(2)), his prior prison
    terms (id. at rule 4.421(b)(3)), and his unsatisfactory past performance on
    probation/parole (id. at rule 4.421(b)(5)).
    The court imposed the upper term of five years on count 1. It also
    imposed the upper term of three years on count 2 to run concurrently, but it
    stayed the sentence under section 654. Additionally, it imposed a 180-day
    consecutive term on count 3.
    At sentencing, the court said the following:
    “The Court feels it is important that this case is arising in
    the context of the defendant having prior drug convictions
    and including some significant custody time. It did not
    prevent the defendant from seriously endangering many
    lives in the manner in which he drove in this case, and it is
    totally fortuitous that this is not a, you know, voluntary
    manslaughter case or something involving, you know, a
    tragedy on the freeway.
    “All of that goes to the issue of the seriousness of the
    defendant’s conduct after the freeway danger was over, and
    his decision to attack an officer and to cause a concussion to
    occur, not a great bodily injury, but this is not just
    somebody who, you know, shoved an officer aside as they
    were trying to run away.
    5
    “So the Court believes that the assessment of the probation
    department as to the felony charges is a correct assessment
    as to the seriousness of the defendant’s record and conduct,
    and that the factors supporting a—an imposition of the
    upper term outweigh those that would support a mid to—or
    lower term.”
    Tirado filed a timely notice of appeal.
    III
    DISCUSSION
    A. Sufficient Evidence Supports Tirado’s Conviction
    Under a substantial evidence standard of review, “[w]e ‘review the
    whole record in the light most favorable to the judgment below to determine
    whether it discloses substantial evidence–that is, evidence which is
    reasonable, credible, and of solid value–such that a reasonable trier of fact
    could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
    Nelson (2016) 
    1 Cal.5th 513
    , 550, quoting People v. Johnson (1980) 
    26 Cal.3d 557
    , 578.) “We presume in support of the judgment the existence of every
    fact the jury reasonably could deduce from the evidence [citation]. If the
    circumstances reasonably justify the findings made by the trier of fact,
    reversal of the judgment is not warranted simply because the circumstances
    might also reasonably be reconciled with a contrary finding.” (People v.
    Jennings (2010) 
    50 Cal.4th 616
    , 638-639.)
    Under section 245, “[a]ny person who commits an assault with a deadly
    weapon or instrument, other than a firearm, or by any means likely to
    produce great bodily injury upon the person of a peace officer or firefighter,
    and who knows or reasonably should know that the victim is a peace officer
    or firefighter engaged in the performance of his or her duties, when the peace
    6
    officer or firefighter is engaged in the performance of his or her duties, shall
    be punished by imprisonment in the state prison for three, four, or five
    years.” (Id., subd. (c).)
    “What force is likely to produce great bodily injury is a question of fact
    to be determined by the jury.” (People v. Pierre (1960) 
    178 Cal.App.2d 585
    ,
    590-591.) Additionally, while “the results of an assault are often highly
    probative of the amount of force used, they cannot be conclusive.” (People v.
    Muir (1966) 
    244 Cal.App.2d 598
    , 604.) “[I]t is immaterial whether the force
    actually results in any injury. The focus is on force likely to produce great
    bodily injury.” (People v. Parrish (1985) 
    170 Cal.App.3d 336
    , 343.) “Great
    bodily injury is bodily injury which is significant or substantial, not
    insignificant, trivial, or moderate.”4 (People v. McDaniel (2008) 
    159 Cal.App.4th 736
    , 748 (McDaniel).) Therefore, the prosecution need only
    prove that a defendant’s act was likely to produce a great bodily injury.
    Here, the jury found Tirado guilty of assault on a peace officer by
    means likely to produce great bodily injury. He asserts that substantial
    evidence does not support his assault conviction because he was well
    restrained, the incident was brief, and the jury found not true the allegation
    that he personally inflicted great bodily injury.
    Officer Huoth witnessed Tirado kick multiple times toward the
    headrest, observed Tirado’s leg or foot connect with part of the seat, and then
    saw Officer Smith “lurch[] forward . . . quite a bit towards the steering
    wheel.” Meanwhile, Officer Smith experienced “what felt like a kick” to the
    back of his head while driving. Tirado’s kick directed at Officer Smith’s head
    4     The use of hands and feet can be considered force capable of producing
    great bodily injury under section 245. (People v. Aguilar (1997) 
    16 Cal.4th 1023
    , 1028.)
    7
    causing Officer Smith to “lurch[] forward . . . quite a bit” demonstrates that
    Tirado’s actions were likely to cause injury. Furthermore, Tirado’s acts were
    likely to produce great bodily injury because Officer Smith was in an exposed
    position facing away from Tirado with no means of protecting himself from
    the strike. Additionally, Officer Smith “felt like a bottom of a shoe” struck his
    head, a place on the body that is particularly likely to suffer a “significant or
    substantial” kind of injury. (McDaniel, supra, 159 Cal.App.4th at p. 748.)
    Thus, focusing on “the force actually used” during the assault, as urged by
    Tirado, we are satisfied that the jury could reasonably determine Tirado’s
    kicking was likely to produce great bodily injury. (People v. Duke (1985) 
    174 Cal.App.3d 296
    , 303 [finding evidence of a brief headlock insufficient to
    support a conviction for assault with force likely to produce great bodily
    injury].)
    Furthermore, while it is not required for an assault by means likely to
    produce great bodily injury to actually result in an injury, an injury occurred
    here. Indeed, the kick “hurt,” and Officer Smith felt dull pain throughout the
    day of the incident. He felt nauseous, vomited several times, and went to the
    hospital, where a doctor diagnosed him with a mild concussion. The fact that
    Tirado was well restrained, the incident was brief, and the jury found not
    true the special allegation that he actually inflicted great bodily injury does
    not refute the jury’s reasonable conclusion that the kick was likely to produce
    great bodily injury.
    Therefore, assuming every fact in support of the judgment, the record
    demonstrates substantial evidence to support Tirado’s assault conviction.
    B. Senate Bill 567
    Prior to Senate Bill 567, section 1170 gave the trial court wide
    discretion in weighing aggravating and mitigating circumstances in the
    8
    imposition of a lower, middle, and upper term sentence. (See § 1170, former
    subd. (b).) In 2021, the Governor approved Senate Bill 567, which amended
    section 1170. These amendments limited the trial court’s broad discretion in
    sentencing and introduced a statutory presumption for a middle term
    sentence. (§ 1170, subds. (b)(1) & (b)(2).) Under the amended version of
    section 1170, a trial court may only exceed the imposition of a middle term
    sentence, “when there are circumstances in aggravation of the crime that
    justify the imposition of a term of imprisonment exceeding the middle term,
    and the facts underlying those circumstances have been stipulated to by the
    defendant, or have been found true beyond a reasonable doubt at trial by the
    jury or by the judge in a court trial.” (Id., subd. (b)(2).) The statute provides
    one exception: “[T]he court may consider the defendant’s prior convictions in
    determining sentencing based on a certified record of conviction without
    submitting the prior convictions to a jury.” (Id., subd. (b)(3).)
    Several appellate courts have recently considered the implications of
    Senate Bill 567, and the issue has divided California Courts of Appeal. In
    People v. Flores (2022) 
    75 Cal.App.5th 495
    , 497 (Flores), the court assessed
    whether, in light of Senate Bill 567, the court must remand for resentencing.
    There, the court noted several aggravating factors and imposed the upper
    term for a corporal injury offense under the former version of section 1170.
    (Flores, at p. 499.)
    The First District held that remand was unnecessary because any error
    was harmless: when “ ‘a reviewing court concludes, beyond a reasonable
    doubt, that the jury, applying the beyond-a-reasonable-doubt standard,
    unquestionably would have found true at least a single aggravating
    circumstance had it been submitted to the jury,’ the error is harmless.”
    (Flores, supra, 75 Cal.App.5th at p. 500, quoting People v. Sandoval (2007) 41
    
    9 Cal.4th 825
    , 839.) The appellate court concluded beyond a reasonable doubt
    that the jury would have found true at least one aggravating circumstance
    the trial court noted at sentencing. (Flores, at p. 501.)
    A panel of this court reached a different conclusion in People v. Lopez
    (2022) 
    78 Cal.App.5th 459
     (Lopez). There, the trial court sentenced the
    defendant under its sentencing discretion consistent with the pre-amendment
    version of section 1170, by imposing an upper term sentence on one count
    based on several aggravating factors. (Lopez, at p. 464.) On appeal, the
    defendant asked this court to remand for resentencing in light of the changes
    to section 1170. (Lopez, at p. 461.)
    On review, we considered the argument in Flores but disagreed that a
    finding by a reviewing court that the jury would have found true beyond a
    reasonable doubt at least one aggravating circumstance was sufficient to
    affirm without remand. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.)
    Instead, we explained:
    “[T]he initial relevant question for purposes of determining
    whether prejudice resulted from failure to apply the new
    version of the sentencing law is whether the reviewing
    court can conclude beyond a reasonable doubt that a jury
    would have found true beyond a reasonable doubt all of the
    aggravating factors on which the trial court relied in
    exercising its discretion to select the upper term. If the
    answer to this question is ‘yes,’ then the defendant has not
    suffered prejudice from the court’s reliance on factors not
    found true by a jury in selecting the upper term. However,
    if the answer to the question is ‘no,’ we then consider the
    second question, which is whether a reviewing court can be
    certain, to the degree required by People v. Watson (1956)
    
    46 Cal.2d 818
    , 836, that the trial court would nevertheless
    have exercised its discretion to select the upper term if it
    had recognized that it could permissibly rely on only a
    single one of the aggravating factors, a few of the
    aggravating factors, or none of the aggravating factors,
    10
    rather than all of the factors on which it previously relied.
    If the answer to both of these questions is ‘no,’ then it is
    clear that remand to the trial court for resentencing is
    necessary.” (Ibid.)
    In Lopez, because the prosecution did not need to present evidence
    directly related to the aggravating factors at trial under the former version of
    section 1170, it was “entirely speculative” to presume “what a jury would
    have found true in connection with these factors.” (Lopez, supra, 78
    Cal.App.5th at p. 466.) Additionally, we concluded that the record did not
    clearly indicate “that [the trial court] would have selected an upper term
    sentence even if only a single aggravating factor or some subset of
    permissible factors were present.” (Id. at p. 468.) Therefore, we remanded
    the matter for resentencing. (Ibid.; see People v. Wandrey (2022) 
    80 Cal.App.5th 962
    , 982-984 [finding remand for resentencing necessary under
    the reasoning in Lopez]; see also People v. Zabelle (2022) 
    80 Cal.App.5th 1098
    , 1113 [Third Dist.] [finding remand for resentencing necessary but
    concluding that “a reviewing court must always evaluate for Watson error
    before concluding that the trial court’s error was harmless”].)
    C. Analysis
    The parties agree that the changes to section 1170 apply retroactively
    to Tirado under In re Estrada (1965) 
    63 Cal.2d 740
    . We agree. Accordingly,
    Tirado is eligible to request resentencing relief.
    Consistent with our view in Lopez, on the record before us, we cannot
    conclude beyond a reasonable doubt that the jury would have found true “all
    of the aggravating factors” the court relied on when sentencing Tirado.
    (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) We find it “entirely
    speculative” to assume that even if the prosecutor presented the aggravating
    circumstances that the trial court relied in sentencing to the jury that the
    11
    jury would have found true beyond a reasonable doubt at least one, let alone
    all, of the aggravating circumstances necessary to find harmless error in this
    case. (Id. at p. 466.)
    Additionally, we do not find that “the trial court would nevertheless
    have exercised its discretion to select the upper term if it had recognized that
    it could permissibly rely on only a single one of the aggravating factors, a few
    of the aggravating factors, or none of the aggravating factors, rather than all
    of the factors on which it previously relied.” (Lopez, supra, 78 Cal.App.5th at
    p. 467, fn. 11.) Here, as in Lopez, the court identified several aggravating
    factors in selecting the upper term at sentencing. (See Id. at p. 464.) The
    court orally discussed Tirado’s prior convictions (Cal. Rules of Court,
    rule 4.421(b)(3)), the seriousness of his conduct (id. at rule 4.421(b)(1)) and
    the severity of his record (id. at rule 4.421(b)(2)). It also stated that it
    believed the probation department’s assessment, which identified a fourth
    aggravating factor, Tirado’s unsatisfactory past performance on
    probation/parole (id. at rule 4.421(b)(5)), was accurate. Consequently, the
    record does not clearly indicate that the trial court would have selected the
    upper term based on a single aggravating factor or subset of aggravating
    factors discussed at sentencing.
    The People, relying on Flores, argue that the trial court’s reliance on
    one permissible factor under Senate Bill 567, Tirado’s criminal history,
    makes any error harmless. However, we disagree with the People’s
    argument, as we did in Lopez, because although the trial court emphasized
    Tirado’s criminal history at sentencing, it was not the only factor the court
    discussed. (Lopez, supra, 78 Cal.App.5th at pp. 466-468.) Therefore, the
    record does not sufficiently demonstrate that his criminal history alone was a
    determinative, sentencing factor.
    12
    The People separately suggest that should we remand the matter, the
    district attorney should be “given the election of proceeding under the new
    version of section 1170, subdivision (b), or accepting resentencing,”
    suggesting the district attorney should have the option of proving facts to
    support aggravating sentencing factors beyond a reasonable doubt. Although
    we remand the matter for resentencing consistent with Senate Bill 567, we
    express no opinion as to the approach the trial court takes on remand.
    DISPOSITION
    We remand the matter. The superior court shall resentence Tirado in
    accordance with the amended version of section 1170, subdivision (b). We
    further direct the superior court to prepare an amended abstract of judgment
    and forward a certified copy to the Department of Corrections and
    Rehabilitation. In all other respects, the judgment is affirmed.
    HUFFMAN, Acting P. J.
    WE CONCUR:
    HALLER, J.
    O’ROURKE, J.
    13
    

Document Info

Docket Number: D079572

Filed Date: 8/25/2022

Precedential Status: Non-Precedential

Modified Date: 8/25/2022