People v. Vigil CA2/4 ( 2020 )

Filed 12/16/20 P. v. Vigil CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B298482
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA117413
v.
AARON VIGIL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed in part,
remanded with directions.
William J. Capriola, 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
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Aaron Vigil of
mayhem, and the trial court sentenced him to the upper term. On
appeal, Vigil contends the case must be remanded for
resentencing because the court prejudicially erred by relying on
several improper aggravating factors in imposing the upper term.
We agree with Vigil and remand the case for resentencing. In all
other respects, the judgment is affirmed.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an
information charging Vigil with assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1); count one)1 and mayhem (§ 203;
count two). The information alleged Vigil personally inflicted
great bodily injury during the commission of both counts
(§ 12022.7, subd. (a)) and personally used a deadly weapon
during the commission of count two (§ 12022, subd. (b)(1)). The
information also alleged Vigil sustained a prior strike conviction
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious
felony conviction (§ 667, subd. (a)(1)). The trial court dismissed
the great bodily injury allegation attached to count two.
The jury found Vigil guilty on both counts. The jury also
found he personally inflicted great bodily injury during the
commission of count one and personally used a deadly weapon in
the commission of count two. In a bifurcated proceeding, Vigil
admitted the prior conviction allegations.
1 All undesignated statutory references are to the Penal
Code.
2
The court sentenced Vigil to an upper term of eight years
for the mayhem conviction, doubled to 16 years based on the prior
strike conviction. The court imposed a one-year enhancement for
using a deadly weapon and a five-year enhancement for the prior
serious felony conviction. The court stayed sentencing on count
one under section 654. Vigil was also sentenced in case number
KA117978, in which he sustained three convictions for possession
of a firearm by a felon and one for possession of ammunition by a
felon. For two of the possession of a firearm by a felon
convictions, the court imposed consecutive 16-month terms. The
court sentenced him concurrently for the remaining felon in
possession of a firearm count and for the felon in possession of
ammunition count. Based on both cases, the court sentenced Vigil
to a total of 24 years and eight months in state prison. Vigil
timely appealed.
FACTUAL BACKGROUND
Prosecution case
Gregory Salcido was a barber, and Vigil, who was also a
barber, worked for Salcido in 2015 until Salcido fired him for
stealing money from the business.
On December 8, 2017, around 8:30 a.m., Salcido was
walking to work when he saw Vigil at an intersection driving a
turquoise Mercedes. Vigil was “flipping [him] off.” Vigil quickly
pulled into the parking lot of a nearby fast food restaurant. Vigil
got out of the car and ran toward Salcido. Salcido took a fighting
stance to defend himself. Vigil and Salcido “danc[ed] around”
each other like boxers for 30 to 60 seconds. Vigil pulled out a
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knife from his waistband and thrust it toward Salcido’s neck and
chest. Salcido moved backward and tripped. As he was falling, he
put up his left hand to protect himself. Vigil’s knife penetrated
and sliced Salcido’s hand, which immediately starting bleeding.
The injury Salcido sustained ran from the base of his pinky finger
for about two inches through his palm. Salcido fell to the ground.
Vigil ran back to his car and drove away. Video footage of the
incident was shown to the jury at trial, and an off-duty police
officer witnessed the incident.
Police and paramedics arrived at the scene and Salcido was
taken to the hospital in an ambulance. Surgery was performed on
his hand the following morning. The knife wound he suffered –
five centimeters long – damaged nerves and tendons and
fractured a bone. At the time of trial, Salcido was still
experiencing pain and discomfort in his hand. The injury affected
his ability to work as a barber. His left hand will never work
quite as well as it did prior to the stabbing.
Defense case
Vigil testified Salcido tried to fight him, he told Salcido he
did not want to fight, and the two men swung at but never
actually touched one another. He also testified he did not have a
knife during the altercation.
DISCUSSION
Vigil argues the trial court prejudicially erred by relying on
improper aggravating factors in imposing the upper term. The
Attorney General agrees the court relied on at least one improper
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factor, but argues remand is unwarranted because the court also
relied on proper factors, and the erroneous reliance on an
improper factor was harmless. We agree with Vigil.
Background
The aggravating factors relating to the crime that the court
relied on in imposing the upper term for mayhem were: (1) the
crime involved great violence and great bodily harm; (2) the
victim was particularly vulnerable; and (3) the manner in which
the crime was committed indicated planning, sophistication, and
professionalism. The aggravating factors the court relied on
relating to Vigil were: (1) he engaged in violent conduct
indicating a serious danger to society; (2) his prior convictions
were of increasing seriousness; and (3) he served a prior prison
term. The court did not find any mitigating factors relating to the
crime itself, but did find Vigil’s prior performance on parole was
satisfactory, and his prior felony conviction (suffered in 2000) was
remote in time. The court found the factors in aggravation
outweighed the factors in mitigation and imposed the upper term.
Analysis
“Aggravating circumstances include those listed in the
sentencing rules, as well as any facts ‘statutorily declared to be
circumstances in aggravation’ (Cal. Rules of Court, rule 4.421(c))
and any other facts that are ‘reasonably related to the decision
being made.’ (Cal. Rules of Court, rule 4.408(a).)” (People v. Black
(2007) 41 Cal. 4th 799, 817 (Black).) “An aggravating
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circumstance is a fact that makes the offense ‘distinctively worse
than the ordinary.’ [Citations.]” (Ibid.)
Vigil argues four of the aggravating sentencing factors the
trial court relied on were improper. The Attorney General
contends five of the six aggravating factors the court relied on
were proper. We review the trial court’s sentencing decision for
abuse of discretion. (See People v. Quintanilla (2009) 170
Cal. App. 4th 406, 414.) We will discuss each of the challenged
factors in turn.2
First, the parties agree, and we agree with the parties, that
the trial court erred by using as an aggravating factor the fact
that the crime involved great violence and great bodily harm.
(See Cal. Rules of Court, rule 4.421(a)(1).) “[A] circumstance that
is an element of the substantive offense cannot be used as a
factor in aggravation. [Citations.]” (People v. Burbine (2003) 106
Cal. App. 4th 1250, 1261-1262.) “Great bodily injury is
unquestionably an element of mayhem; it is therefore improper to
use that factor to aggravate the sentence for that offense.
[Citations.]” (People v. Hill (1994) 23 Cal. App. 4th 1566, 1575.)
Vigil next argues the trial court erred by relying on the
victim’s vulnerability as a circumstance in aggravation. (See Cal.
Rules of Court, rule 4.421(a)(3).) We reject this contention. “The
‘particularly vulnerable victim’ factor supports imposition of the
2 Although Vigil’s attorney did not object to the trial court’s
reliance on improper aggravating factors, we exercise our
discretion to address the argument he has raised on appeal. (See
People v. Williams (1998) 17 Cal. 4th 148, 161, fn. 6.) Because we
reach the merits of Vigil’s main argument, we need not address
his other argument, raised in the alternative, that reversal is
required because trial counsel was ineffective in failing to object.
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upper term if the victim is vulnerable ‘in a special or unusual
degree, to an extent greater than in other cases [and is]
defenseless, unguarded, unprotected, accessible, assailable . . .
susceptible to the defendant's criminal act.’ [Citation.]” (People v.
Clark (1990) 50 Cal. 3d 583, 638.) The trial court may consider
both “the personal characteristics of the victim and the setting of
the crime[.]” (People v. Price (1984) 151 Cal. App. 3d 803, 814.) The
trial court noted during sentencing that the victim was a “frail,
elderly man” who had “no opportunity to defend himself” as he
was walking to work alone and unarmed. Having seen the victim
testify, the trial court was in a much better position than we are
now to assess the victim’s vulnerability. We defer to the trial
court’s decision to rely on the victim’s vulnerability as a
circumstance in aggravation.
Next, Vigil contends the trial court erred by concluding the
manner in which the crime was committed indicated planning,
sophistication, or professionalism. (See Cal. Rules of Court, rule
4.421(a)(8).) In our review of the record, we do not see evidence of
sophistication or professionalism. The crux issue is therefore
whether the record shows the crime involved a level of planning
sufficient to constitute an aggravating factor. In support of the
argument that the record does not show a sufficient level of
planning, Vigil explains the offense was a result of a chance
encounter that occurred in broad daylight at a busy intersection
during Salcido’s morning commute to work. The Attorney
General disagrees, noting Vigil was carrying a knife, which
evidenced a plan to seize an opportunity should it arise.
Unfortunately it is not entirely clear from the record which side
is correct on the question of what Vigil did or did not plan. From
our review of the record, it appears perhaps Vigil initially
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intended to commit battery. Vigil and Salcido made eye contact,
and Vigil parked and ran toward Salcido. The two men circled
each other for 30 to 60 seconds in a fighting stance. Only then did
Vigil pull out a knife and commit mayhem. Under these
circumstances, we do not see evidence of sophistication,
professionalism, or a plan to commit mayhem. We therefore agree
that this was an improper aggravating factor.
Vigil lastly contends the court erred by relying on the
aggravating factor that he engaged in violent conduct indicating
a serious danger to society. (See Cal. Rules of Court, rule
4.421(b)(1).) Specifically, Vigil argues this factor was improper
because his mayhem conviction did not involve violence
distinctively worse than any other ordinary act of mayhem. (See
Black, supra, 41 Cal.4th at p. 817.) We are not persuaded. There
was nothing erroneous about the trial court’s conclusion, based
on the facts of his current offense, as well as based on his prior
conviction for assault with force likely to cause great bodily
injury, that the potential danger Vigil posed to society was an
aggravating factor.
Having concluded two of the aggravating factors the trial
court relied on were improper, we now turn to the question
whether the error was prejudicial. When the trial court has relied
on improper aggravating factors, remand for resentencing is
proper if it is reasonably probable the result would have been
more favorable to the defendant without the errors. (People v.
Avalos (1984) 37 Cal. 3d 216, 233, citing People v. Watson (1956)
46 Cal. 2d 818, 836.) “[A]bsent unusual circumstances, the
presence of a mitigating factor renders improper reliance on an
aggravating factor prejudicial, since, with the improper factor
eliminated, the presence of mitigation might reasonably affect
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the balance of the trial court’s judgment.” (People v. Levitt (1984)
156 Cal. App. 3d 500, 518, overruled on another ground in People
v. Johnson (2016) 62 Cal. 4th 600, 649, fn. 6.) Here, the court
relied on two improper aggravating factors, but also properly
relied on two mitigating factors. We therefore conclude the error
here was prejudicial and remand the matter for a new sentencing
hearing. We express no view concerning what sentence the court
should impose on remand.
DISPOSITION
The case is remanded for a new sentencing hearing. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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