People v. Diaz CA5 ( 2014 )

Filed 4/25/14 P. v. Diaz CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F064090
Plaintiff and Respondent,
(Super. Ct. No. VCF225602A)
v.
CARLOS ADRIAN DIAZ, ORDER MODIFYING OPINION AND
DENYING REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE PEOPLE,
F064366
Plaintiff and Respondent,
(Super. Ct. No. VCF225602B
v.
ALEJANDRO CISNEROS,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on April 17, 2014, be modified in the
following particulars:
On page 17, following the fourth paragraph commencing “The record reflects,”
the following paragraphs are inserted:
The same analysis is equally applicable to Diaz’s sentencing. At the
time of sentencing, Diaz failed to request the trial court to state its reasons for
consecutive sentencing. This failure to object constitutes a forfeiture of the
issue. (People v. de Soto, supra, 54 Cal.App.4th at pp. 8-9.)
Regardless, there was no ineffective assistance of counsel in this
regard. As we noted, at the time of Diaz’s sentencing, there was considerable
discussion and argument about whether concurrent or consecutive sentences
should be imposed. Clearly, the trial court was aware of its discretionary
power to impose consecutive or concurrent terms; Diaz’s counsel argued for
concurrent terms; and instead the trial court exercised its discretion to impose
consecutive terms. On this record, Diaz cannot establish that he would have
received a more favorable result and, consequently, he cannot establish
prejudice. (Williams v. Taylor, supra, 529 U.S. at pp. 391, 394.) Absent
prejudice, there can be no ineffective assistance of counsel. (Jackson, supra,
3 Cal.4th at p. 604.)
There is no change in the judgment.
Appellant Carlos Adrian Diaz’s petition for rehearing is denied.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
DETJEN, J.
2.
Filed 4/17/14 P. v. Diaz CA5 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F064090
Plaintiff and Respondent,
(Super. Ct. No. VCF225602A)
v.
CARLOS ADRIAN DIAZ, OPINION
Defendant and Appellant.
THE PEOPLE,
F064366
Plaintiff and Respondent,
(Super. Ct. No. VCF225602B
v.
ALEJANDRO CISNEROS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
Cheryl Rae Anderson, under appointment by the Court of Appeal, for Defendant
and Appellant Carlos Adrian Diaz.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and
Appellant Alejandro Cisneros.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellants Carlos Adrian Diaz and Alejandro Cisneros of
attempted murder and carjacking and found several enhancements true. They challenge
the convictions and the true findings on multiple grounds. They also contend the trial
court erred in multiple respects at sentencing. We agree with some, but not all, of their
contentions. As a result, we will affirm the convictions on the substantive offenses, strike
some of the true findings on the enhancements, and remand for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
We will focus our summary on the facts necessary for the resolution of the issues
raised here.
On December 13, 2008, Samuel Topete met up with Cisneros at a friend’s house
in Strathmore. Topete was driving his girlfriend’s white Cougar. At the friend’s house,
Topete, Cisneros and Alex Marquez passed the afternoon drinking and smoking
marijuana. Eventually, Diaz joined the other men.
Sometime later all the men left in the white Cougar and headed to Tulare, where
they drove around. They ended up at a party for a while and then Topete, Cisneros, Diaz
and others left the party, with Topete driving. Topete drove to a combination gas station
and convenience store where he intended to fill up with gas and buy more beer. Topete
got out of the car to pay for the gas and buy the beer. When he returned, he noticed a car
with special rims pull up and park. Diaz and Cisneros got out of the Cougar and headed
toward the car.
2.
Derrick Little was the driver of the 1988 Fleetwood Cadillac Coupe that Topete
had noticed. The car had a custom grill and custom rims and tires. The car also had a
custom sound system that Little was playing loudly as he drove into the parking lot.
Little stopped in the area by a phone booth and opened his door, leaving his engine
running. He intended to “hop out” long enough to hand an acquaintance a few dollars.
Before Little could leave the car, Cisneros and Diaz approached him and one of
them, probably Diaz, stated, “we’re going to take this fucking car.” As Little started to
argue, Cisneros slid into the car.
Little struggled with Cisneros, while Diaz was outside the car “hitting” Little from
behind; the hits were stab wounds. Suddenly, Cisneros pulled out a gun and tried to point
it at Little; Little deflected the gun, but did not touch it. The gun went off and a bullet
went through the roof of Little’s car. Because he was unarmed, Little decided to back
away from Cisneros. When he did so, he turned and Diaz stabbed him in the chest.
Cisneros drove off alone in the Cadillac. Diaz was unable to get inside the
passenger side of the Cadillac because the door was locked, so he ran back to Topete’s
car. Topete followed the Cadillac. Topete flagged down Cisneros, who stopped, and
Topete told Diaz he had to get out of his car. Diaz got out of the Cougar and climbed
into the Cadillac with Cisneros.
The attack left Little with three knife wounds and a punctured lung and artery, as
well as a number of surgical scars from the multiple procedures he underwent during a
month-long hospital stay. At the time of trial, Little still suffered from limited mobility
in his right arm.
At the hospital, Detective James Haney attempted to interview Little. Little
identified Cisneros from a photo lineup, but he was heavily sedated. Haney met with
Little again after he was released from the hospital. Little confirmed his identification of
Cisneros as one of his assailants; he also identified Diaz as the second assailant from a
photo lineup.
3.
Haney also interviewed Topete, who told him about the events of December 13,
2008. Haney contacted Cisneros, who denied knowing Topete and denied any
involvement in the attack on Little or the taking of the Cadillac.
Before being taken into custody, Cisneros had told Joel Ornelas that he needed a
place to stay because law enforcement was looking for him. When Ornelas asked why,
Cisneros admitted shooting at a man who tried to stop him from taking his Cadillac.
Cisneros also admitted abandoning the Cadillac in a field between Strathmore and
Lindsay, where it was later found.
Once he was taken into custody, Cisneros admitted he knew Topete and had gone
to Tulare with him on December 13, 2008; he did not admit to any other actions. Haney
also arrested Diaz.
On December 18, 2009, an information was filed against Cisneros and Diaz. On
February 15, 2011, Cisneros filed a motion pursuant to People v. Pitchess (1974) 11
Cal. 3d 531 (Pitchess) seeking Haney’s personnel records. Diaz joined in the motion.
After an in camera review, the trial court ordered certain records turned over to the
defense.
On August 18, 2011, an amended information was filed. Cisneros was charged
with attempted murder (count 1), carjacking with use of a deadly weapon (count 2),
shooting at an inhabited dwelling (count 3), shooting from a motor vehicle (count 4), and
the substantive offense of active participation in a criminal street gang (count 5). Diaz
was charged with attempted murder and carjacking with use of a deadly weapon. It also
was alleged that the attempted murder was committed willfully, deliberately, and with
premeditation. Numerous enhancements also were alleged, including that Cisneros
personally used and discharged a firearm and that Diaz inflicted great bodily injury.
Officer Jesus Guzman testified as a gang expert. Guzman opined that Cisneros
and Diaz were “Northern” gang members at the time of the attack on Little.
Diaz testified in his own defense, denying any involvement in the attack on Little.
4.
On September 6, 2011, the jury convicted Diaz of attempted murder and
carjacking with use of a deadly weapon and returned true findings that the attempted
murder was premediated and deliberate (Pen. Code, §§ 664, 187, subd, (a)),1 a principal
personally discharged a firearm (§ 12022.53, subd. (c), (e)(1)), a principal was armed
with a firearm (§ 12022, subd. (a)(1)), personal use of a knife (§ 12022, subd. (b)(1)), and
inflicting great bodily injury (§ 12022.7, subd. (a)). The jury was unable to reach a
finding on the gang enhancement as to Diaz.
Cisneros also was convicted of attempted murder and carjacking with use of a
deadly weapon, with true findings on the same allegations, except as to the premeditated
and deliberate special allegation and the great bodily injury enhancement. Again, the
jury was unable to reach a finding on the gang enhancement. Cisneros also was found
guilty of the substantive gang offense. Cisneros later filed a motion to dismiss the gang
enhancements under section 186.22, subdivision (b), which the trial court granted.
On December 7, 2011, the trial court sentenced Diaz to an indeterminate life term
on the count 1 offense, plus 25 years for the weapons and great bodily injury
enhancements. On count 2, Diaz was sentenced to a consecutive term of nine years for
the substantive offense, plus 22 years for the weapons enhancements, and an additional
three years for the great bodily injury enhancement.
The trial court sentenced Cisneros on February 8, 2012. It imposed a total term of
38 years calculated as follows: seven years for attempted murder, 20 months for
carjacking, 20 months for the gang offense, and 27 years eight months for the weapons
enhancements.
Diaz and Cisneros separately appealed, and we ordered the two appeals
consolidated on September 14, 2012.
1All further statutory references are to the Penal Code unless otherwise stated.
5.
DISCUSSION
Diaz and Cisneros raise multiple issues, together and separately. Both Diaz and
Cisneros (1) challenge the imposition of the section 12022.53 weapon enhancement,
(2) contend section 654 applies to stay imposition of punishment for the carjacking
offense, (3) ask this court to conduct an independent review of Pitchess materials, and
(4) request that errors in the abstracts of judgment be corrected.
Diaz separately (1) challenges the premeditated and deliberate finding appended to
the attempted murder conviction, (2) contends an unlawful term was imposed for the
section 12022, subdivision (b) enhancement, and (3) maintains that section 654 bars
multiple enhancements appended to different offenses when there is only one victim.
Cisneros argues (1) the term imposed for the section 186.22, subdivision (a)
offense must be stayed pursuant to section 654, (2) the section 12022, subdivision (b)
enhancement must be stricken or stayed if the section 12022.53 enhancement is imposed,
(3) the consecutive term for the carjacking offense should be vacated because the trial
court failed to state reasons on the record, and, (4) alternatively, defense counsel was
ineffective for failing to request the trial court state its reasons for imposing a consecutive
sentence.
We will address each of these issues, some of which the People concede.
I. Weapon Enhancements
Diaz and Cisneros have raised several issues surrounding the imposition of
enhancements pursuant to sections 12022.53, subdivisions (c) and (e), and 12022,
subdivision (b).
Section 12022.53 Enhancement
Both Diaz and Cisneros challenge imposition of the personal gun use enhancement
under section 12022.53 on the basis of sufficiency of the evidence. The People concede
the enhancement must be stricken as to Diaz, but assert it should be upheld as to
Cisneros. We agree with the People.
6.
A true finding under section 12022.53 requires the personal use of a firearm,
except when the offense is committed to benefit a criminal street gang. (People v.
Brookfield (2009) 47 Cal. 4th 583, 590.) Here, the evidence established that Cisneros
fired a gun, but Diaz did not. Thus, a section 12022.53 enhancement cannot be imposed
on Diaz based on personal use.
Moreover, there is no criminal street gang finding as to Diaz that would support a
section 12022.53, subdivision (e) enhancement. The jury was unable to reach a finding
on the section 186.22, subdivision (b) gang enhancement, and the trial court thereafter
dismissed it for lack of sufficient evidence. Consequently, the true finding on the section
12022.53, subdivision (e)(1) enhancement must be vacated as to Diaz. Based on our
conclusion that the evidence does not support this enhancement as to Diaz, we need not
address Diaz’s other contentions regarding this enhancement.
As for Cisneros, however, the evidence supports the section 12022.53
enhancement. Section 12022.53, subdivision (c) requires that the defendant personally
and intentionally discharge a firearm. Cisneros claims the firing of the weapon was
accidental, not intentional. The jury found the discharge was intentional, which finding
was supported by the evidence.
The testimony of a single witness, if believed by the fact finder, is sufficient
to support a conviction. (People v. Rincon-Pineda (1975) 14 Cal. 3d 864, 884-885;
People v. McIntyre (1981) 115 Cal. App. 3d 899, 906-907.) It was for the jury to assess
the respective credibility of prosecution and defense witnesses. This court does not
reweigh evidence, reevaluate the credibility of witnesses or resolve factual conflicts. (In
re Frederick G. (1979) 96 Cal. App. 3d 353, 367.) Rather, “‘If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a contrary finding does not
warrant a reversal of the judgment.’” (People v. Perez (1992) 2 Cal. 4th 1117, 1124
7.
(Perez).) Having reviewed the totality of trial evidence, we conclude the section
12022.53 enhancement as to Cisneros was sufficiently supported by the evidence.
The testimony at trial from Little was that Cisneros pulled a gun on him; Little
tried to deflect it, but stated he never actually touched the gun. Ornelas testified Cisneros
admitted to him that he “shot at” Little when Little tried to stop Cisneros from taking the
car. This evidence clearly supports the conclusion the gun fired because Cisneros
intentionally pulled the trigger.
The prosecutor argued to the jury the necessity of finding that Cisneros intended to
fire the gun; the defense unsuccessfully argued the firing was accidental. No one testified
the firing was accidental. The jury obviously found the firing to be intentional, as it
returned a true finding on the section 12022.53 enhancement.
Even if the jury could have made a contrary finding, it is not for this court to
reweigh the evidence and vacate the true finding. (Perez, supra, 2 Cal.4th at p. 1124.)
Section 12022 Enhancement
Cisneros contends the section 12022, subdivision (b) enhancement for using a
deadly weapon must be stayed or stricken because the trial court imposed punishment for
the section 12022.53 enhancement, and the only weapon used by Cisneros was the
firearm. The People agree. Diaz claims the term imposed for the section 12022,
subdivision (b) enhancement is unlawful. Again, the People concede the point.
Section 12022.53, subdivision (f) provides that an enhancement pursuant to
section 12022 shall not be imposed on a person in addition to an enhancement imposed
pursuant to section 12022.53. As the California Supreme Court stated in People v.
Gonzalez (2008) 43 Cal. 4th 1118, 1129, “section 12022.53 was enacted to ensure that
defendants who use a gun remain in prison for the longest time possible and that the
Legislature intended the trial court to stay, rather than strike, prohibited enhancements
under section 12022.53.” The California Supreme Court determined that use of the word
“impose” in this instance should be understood as shorthand for “imposed and then
8.
stayed.” (Id. at pp. 1129-1130.) In accordance with the holding of Gonzalez, the section
12022, subdivision (b) enhancement should be imposed and stayed, not stricken, as to
Cisneros.
As for Diaz, the trial court imposed a term of two years for the section 12022,
subdivision (b) enhancement appended to count 1, attempted murder. Diaz contends the
term is unlawful and should be a one-year term. He is correct.
Section 12022 authorizes the imposition of an additional one-, two-, or three-year
term when the weapon use is in the commission or attempted commission of a carjacking.
(§ 12022, subd. (b)(2).) For the commission of other felonies, such as attempted murder,
section 12022, subdivision (b)(1) limits the additional term to one year. We will direct
that the sentence and abstract of judgment be corrected on remand.
II. Sufficiency of the Evidence of Premeditation and Deliberation
Diaz contends there was insufficient evidence to support the premeditated and
deliberate finding appended to the attempted murder count. Diaz argues arming himself
with a knife and aiming it at Little’s chest are circumstances that are “equally consistent
with a sudden impulse to kill,” as with premeditation and deliberation.
The standard of review on appeal of the sufficiency of the evidence supporting the
finding of premeditated and deliberated murder involves consideration of the whole of
the evidence and all logical inferences from that evidence. This court is required to
review the evidence in the light most favorable to the judgment below to determine
whether it discloses substantial evidence, to wit, evidence that is reasonable, credible and
of solid value, from which a reasonable trier of fact could find Diaz premeditated and
deliberated beyond a reasonable doubt. (Perez, supra, 2 Cal.4th at pp. 1123-1124.) Even
if this court were to conclude it might have made contrary factual findings or drawn
different inferences, “we are not permitted to reverse the judgment if the circumstances
reasonably justify those found by the jury. It is the jury, not the appellate court, that must
be convinced beyond a reasonable doubt.” (Id. at p. 1126.)
9.
Where the finding is based on circumstantial evidence, this court “‘must decide
whether the circumstances reasonably justify the findings of the trier of fact, but [the
appellate court’s] opinion that the circumstances also might reasonably be reconciled
with a contrary finding would not warrant a reversal of the judgment. [Citation.]’”
(People v. Cain (1995) 10 Cal. 4th 1, 39, quoting People v. Proctor (1992) 4 Cal. 4th 499,
528-529.)
In assessing the evidence for premeditation and deliberation, “‘The true test is not
the duration of time, but rather the extent of the reflection. A cold, calculated judgment
and decision may be arrived at in a short period of time, but a mere unconsidered and
rash impulse, even though it include[d] an intent to kill, is not such deliberation and
premeditation .…’” (Perez, supra, 2 Cal.4th at p. 1124.) “‘Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly .…’”
(People v. Velasquez (1980) 26 Cal. 3d 425, 435.)
Here, Diaz exhibited advance planning by bringing a knife with him. He had time
to consider and reflect on his course of action while Little and Cisneros struggled in the
car. Then, when Little tried to retreat and escape, Diaz deliberately stabbed him in the
chest, puncturing his lung and artery. Diaz’s stabbing Little only once, or Little’s
escaping death, does not necessarily establish a less culpable state of mind. (People v.
Lashley (1991) 1 Cal. App. 4th 938, 945.) The prior possession of the weapon and the
deliberately aimed stab to a part of the body likely to cause death or life threatening
injuries, coupled with the opportunity to reflect, even if briefly, constitutes substantial
evidence from which a reasonable jury could find Diaz acted from premeditation and
deliberation, rather than sudden impulse. (People v. Nelson (2011) 51 Cal. 4th 198, 213.)
Diaz’s claim thus fails.
III. Section 654
Diaz and Cisneros raise three issues regarding application of the principles of
section 654. First, Cisneros contends the consecutive sentence imposed for the section
10.
186.22, subdivision (a) criminal street gang offense must be stayed. Second, both
Cisneros and Diaz contend that imposition of punishment for the carjacking offense
should be stayed since punishment was imposed for the attempted murder offense. Third,
Diaz contends that if punishment for both the carjacking and attempted murder offenses
is permitted, section 654 precludes imposing more than one great bodily injury and
weapon enhancement because there was only one victim.
Criminal Street Gang Offense
Cisneros claims the consecutive sentence imposed for active participation in a
criminal street gang, the section 186.22, subdivision (a) offense, must be stayed pursuant
to section 654. The People agree, and so do we.
Section 654, subdivision (a) states: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”
In People v. Mesa (2012) 54 Cal. 4th 191 (Mesa), the California Supreme Court
held that section 654 does not permit separate punishment for the section 186.22,
subdivision (a) crime of active participation in a criminal street gang when the only
evidence of such participation is the current charged offenses, even if there are multiple
objectives. (Mesa, at pp. 199-200.)
Here, as the People concede, the evidence supporting Cisneros’s active
participation in a criminal street gang was the evidence associated with the other charged
offenses of carjacking and attempted murder. Pursuant to Mesa, supra, 54 Cal.4th at
page 199, the trial court should have stayed the term it imposed for the section 186.22,
subdivision (a) offense.
Carjacking and Attempted Murder Offenses
Both Diaz and Cisneros contend the punishment imposed for the carjacking
offense should have been stayed because that offense was part of an indivisible course of
11.
conduct that included attempted murder. They maintain the attempted murder was
committed to facilitate the carjacking. The trial court found that section 654 did not
apply. We agree with the trial court.
“Section 654 precludes multiple punishment for a single act or indivisible course
of conduct punishable under more than one criminal statute. Whether a course of
conduct is divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the ‘intent and objective’ of the actor. [Citation.] If all of the
offenses are incident to one objective, the court may punish the defendant for any one of
the offenses, but not more than one. [Citation.] If, however, the defendant had multiple
or simultaneous objectives, independent of and not merely incidental to each other, the
defendant may be punished for each violation committed in pursuit of each objective
even though the violations share common acts or were parts of an otherwise indivisible
course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal. App. 4th 263, 267-
268.)
Whether the defendant possessed multiple objectives and intents within the
meaning of section 654 is a factual question. We will uphold a trial court’s explicit or
implicit finding if it is supported by substantial evidence. The trial court’s determination
is viewed in the light most favorable to the People and we presume the existence of every
fact that could reasonably be deduced from the evidence. (People v. Jones (2002) 103
Cal. App. 4th 1139, 1143.)
Here, the unarmed Little was struggling to retain possession of his car when
Cisneros fired a shot. Little stopped struggling and began to back away from the car
when Diaz stabbed Little in the chest, causing life-threatening injuries.
The elements of attempted murder are specific intent to murder a human being
with express malice and an indirect ineffectual act in furtherance of such intent. (People
v. Lee (1987) 43 Cal. 3d 666, 670.) “Express malice” is defined as a deliberate intention
to take away the life of a fellow creature. (§ 188.) Carjacking, however, requires the
12.
taking of a specific type of property by force or fear, i.e., a motor vehicle, with the intent
either to permanently or to temporarily deprive the victim of possession of the vehicle.
(People v. Green (1996) 50 Cal. App. 4th 1076, 1083-1084.) The necessary intent that is
required for a guilty verdict on these two offenses is not the same.
When there are separate, even though simultaneous objectives and intents,
imposition of multiple punishments is permissible. (See, e.g., People v. Nguyen (1988)
204 Cal. App. 3d 181, 189-193, 196 [assault of robbery victim had separate intent and
objective than the robbery]; People v. Porter (1987) 194 Cal. App. 3d 34, 37-39 [robbery
and kidnapping of the same victim had separate objectives].) When there are similar, but
consecutive intents and objectives, imposition of multiple punishments also is
permissible. (See, e.g., People v. Harrison (1989) 48 Cal. 3d 321, 334-338 [multiple sex
crimes against a single victim have same, but consecutive, intent and objective and
multiple punishment permitted]; People v. Trotter (1992) 7 Cal. App. 4th 363, 368
[multiple shots fired at single victim evinces separate consecutive intents and multiple
punishment imposed].)
Once Little had stopped resisting the carjacking and was backing away, he
provided no further impediment to the carjacking. All the force and fear necessary for
completion of the carjacking had occurred. Thereafter, stabbing him in the chest when he
attempted to flee was done pursuant to a different intent and objective. (See, e.g., In re
Chapman (1954) 43 Cal. 2d 385, 388-390 [defendant properly punished for robbery and
felony assault because he struck victim after taking wallet]; People v. Hopkins (1975) 44
Cal. App. 3d 669, 675-676 [robbery and felony assault separately punishable when
defendant robbed and then struck victim].)
Under aider and abettor liability, Cisneros is culpable as a principal, even though
Diaz was the one who wielded the knife. Aiding and abetting instructions were given to
the jury. All persons concerned in the commission of a crime, whether it is a felony or
misdemeanor, and whether they directly commit the act constituting the offense, or aid
13.
and abet in its commission, are principals in any crime so committed. (§ 31.) “Aiding
and abetting does not require participation in an agreement to commit an offense, but
merely assistance in committing the offense. [Citation.]” (People v. Morante (1999) 20
Cal. 4th 403, 433.)
Section 654 does not preclude imposing punishment for both the attempted murder
and the carjacking and the trial court’s imposition of punishment for both offenses was
appropriate. (People v. Sandoval (1994) 30 Cal. App. 4th 1288, 1299-1300 [initial intent
to rob victim is distinct from intent to shoot victim when victim did not cooperate].)
Section 654 and Enhancements
Diaz contends that even if section 654 does not preclude imposition of separate
punishment for both the carjacking and the attempted murder, it does preclude imposition
of more than one great bodily injury and weapon use enhancement because those
enhancements are based upon the same assault on a single victim. The People disagree,
arguing that section 654 does not restrict imposition of either of these enhancements
appended to the attempted murder and carjacking accounts. We conclude the great
bodily injury enhancement can be imposed only once; the weapon enhancement can be
imposed as to both offenses. We address each in turn.
Section 654 applies to enhancements and may preclude imposition of punishment
on multiple enhancements arising from the circumstances of the crime and not the status
of the offender. (People v. Ahmed (2011) 53 Cal. 4th 156, 161.) When applied to a single
substantive offense, section 654 “bars multiple punishment for the same aspect of a
criminal act.” (Ahmed, at p. 164.) Ahmed, however, did not address the imposition of
multiple sentence enhancements for separate substantive offenses.
As for the great bodily injury enhancement, numerous cases stand for the
proposition that only one great bodily injury enhancement may be imposed on a
defendant if the defendant committed a single assault on a single victim. (See, e.g.,
People v. Wooten (2013) 214 Cal. App. 4th 121, 132; People v. Reeves (2001) 91
14.
Cal.App.4th 14, 56; People v. Moringlane (1982) 127 Cal. App. 3d 811, 817.) In both
Reeves and Moringlane, the appellate courts concluded that multiple enhancements for
great bodily injury may not be imposed when there has been a single assault on a single
victim. (Reeves, at p. 57; Moringlane, at p. 819.) When, however, there have been
separate assaults on a single victim, multiple great bodily injury enhancements can be
imposed. (Wooten, at p. 133.)
Here, we concluded the attempted murder and the carjacking were separate and
divisible acts with separate intents. However, there was only a single attack on Little that
resulted in great bodily injury -- the knife wound to the chest inflicted by Diaz during the
attempted murder. There were not separate assaults on Little. Consequently, under
Reeves, Moringlane, and similar cases, including People v. Culton (1979) 92 Cal. App. 3d
113, 117 and People v. Alvarez (1992) 9 Cal. App. 4th 121, 127, only one great bodily
injury enhancement may be imposed on Diaz.
We reach the opposite conclusion with respect to the weapon enhancement. Diaz
used a knife to instill fear during the carjacking and to inflict great bodily injury in
attempting to murder Little. The weapon enhancement was properly appended and
imposed on both substantive convictions. (People v. Britt (2004) 32 Cal. 4th 944, 951-
952.)
IV. Consecutive Sentences
Cisneros contends that the consecutive sentences imposed for counts 2 and 5,
carjacking and the gang offense, respectively, must be vacated because the trial court
failed to state on the record reasons for its discretionary sentencing decision. He also
argues that if this issue is forfeited, defense counsel was ineffective for failing to assert it
at the time of sentencing. The People contend the issue is waived, and, alternatively,
Cisneros cannot demonstrate that he suffered prejudice as a result of defense counsel’s
actions. We agree with the People.
15.
Cisneros has forfeited this issue. He cannot for the first time on appeal raise an
objection to a sentence on the basis the trial court failed to state reasons for its sentencing
choice. (People v. Scott (1994) 9 Cal. 4th 331, 351-353.) Objections to a sentence
imposed must be made in the trial court and must be sufficiently specific to provide the
trial court a meaningful opportunity to correct any errors. (People v. de Soto (1997) 54
Cal. App. 4th 1, 8-9.)
We next turn to Cisneros’s contention that failure to raise this issue constitutes
ineffective assistance by defense counsel. Because we have already determined that any
punishment imposed for the count 5 offense must be stayed pursuant to Mesa, supra, 54
Cal.4th at page 199, we address only count 2.
The burden of proving ineffective assistance of counsel is on the defendant.
(People v. Pope (1979) 23 Cal. 3d 412, 425.) “As the United States Supreme Court
explained in Strickland v. Washington [(1984)] 466 U.S. 668, 697, ‘a court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies .… If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.’” (In re Jackson (1992) 3
Cal. 4th 578, 604 (Jackson).)
“If the record contains no explanation for the challenged behavior, an appellate
court will reject the claim of ineffective assistance ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation.’ [Citation.]” (People v. Kipp (1998) 18 Cal. 4th 349, 367.) In other words,
“in assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct
appeal, competency is presumed unless the record affirmatively excludes a rational basis
for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal. 4th
1216, 1260.)
16.
To establish prejudice, Cisneros must show that absent defense counsel’s failure to
object to the trial court’s omission of reasons for its sentencing choice, he would have
received a more favorable result. (Williams v. Taylor (2000) 529 U.S. 362, 391, 394.)
Cisneros has not made that showing.
The probation report for Cisneros recommended the aggravated term be imposed
for the count 1 offense, with a consecutive term for count 2. Prior to sentencing, the trial
court considered, and rejected, the application of section 654 to imposition of punishment
on the substantive offenses. At sentencing, defense counsel raised concerns about the
recommendation of the probation department that aggravated, consecutive terms be
imposed. Defense counsel argued that the term imposed should be no more than the
midterm and that the counts should not be consecutive because of the “overlap” between
the carjacking and attempted murder. The People responded by asking that the count 2
term be imposed consecutively.
Before sentencing Cisneros, the trial court imposed sentence on Diaz. During that
sentencing hearing, there was discussion and argument about whether to impose a
concurrent or consecutive term for count 2.
The record reflects the trial court was aware of its discretionary sentencing
choices. The trial court exercised its discretion to impose consecutive or concurrent
terms and chose to impose consecutive terms on Cisneros as recommended by the
probation department, but also chose to differ from the recommended aggravated term by
imposing the midterm instead of the aggravated term on count 1. On this record,
Cisneros cannot establish ineffective assistance of counsel because he cannot demonstrate
prejudice. (Jackson, supra, 3 Cal.4th at p. 604.)
V. Independent Review of Pitchess Materials
Both Cisneros and Diaz ask this court to review independently the materials
reviewed by the trial court in camera pursuant to a Pitchess motion.
17.
Prior to trial, Diaz and Cisneros moved under Pitchess, supra, 11 Cal. 3d 531 for
discovery of the personnel records of Haney and requested discovery, including
complaints against Haney for acts indicating or constituting dishonesty, false arrests,
fabrication of charges, reports or evidence, or citizen complaints. The trial court
reviewed the personnel records in camera and determined there was nothing in the
personnel records to be disclosed. The trial court did disclose to the defense that Haney
had pled in Kings County to a section 245 misdemeanor. Tulare County, however, did
not have access to the police reports or other documents surrounding that incident.
Trial courts are vested with broad discretion when ruling on motions to discover
police personnel records (People v. Samayoa (1997) 15 Cal. 4th 795, 827; People v.
Memro (1995) 11 Cal. 4th 786, 832), and we review a trial court’s ruling for abuse of
discretion (People v. Hughes (2002) 27 Cal. 4th 287, 330).
In accordance with Evidence Code section 1045, the trial court in this case
examined Haney’s personnel records in camera to determine whether they contained any
information relevant to defendants’ cases. Our appellate record, however, did not include
copies of the documents the trial court examined. Therefore, we requested and received
from the trial court the documents it reviewed in camera at the time of the Pitchess
hearing. The augmented record now includes a sealed copy of the relevant documents
from Haney’s personnel file.
We have reviewed the record, including the sealed augmentation. The Pitchess
motion here focused on whether any of Haney’s personnel records were relevant to
credibility issues in this case. Based on our review of the record, the trial court did not
abuse its discretion in determining that none of the documents in Haney’s personnel file
referred to or reflected complaints against Haney for acts indicating or constituting
dishonesty, false arrests, fabrication of charges, reports or evidence, or citizen
complaints.
18.
VI. Abstract of Judgment
Cisneros contends there are clerical errors in his abstract of judgment. Diaz also
contends there are clerical errors in his abstract of judgment. Because this case must be
remanded for resentencing, the trial court can make any corrections to the abstracts of
judgment that are deemed necessary.
DISPOSITION
The verdicts on all substantive offenses and all true findings are affirmed, except
for the true finding on the section 12022.53 enhancement and one section 12022.7,
subdivision (a) enhancement as to Diaz, which are stricken. The matter is remanded for
resentencing in accordance with this opinion and preparation of amended abstracts of
judgment.
_____________________
CORNELL, Acting P.J.
WE CONCUR:
_____________________
GOMES, J.
_____________________
DETJEN, J.
19.