People v. Le CA4/3 ( 2023 )

Filed 6/6/23 P. v. Le CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061340
v. (Super. Ct. No. 20WF2321)
HOANG NAM MINH LE, OPI NION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Robert
A. Knox, Judge. Affirmed. Motion for judicial notice denied.
Mi Kim, 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, A. Natasha Cortina and
Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Hoang Nam Minh Le appeals from a judgment after a jury convicted him of
attempted voluntary manslaughter and unlawful taking of a vehicle. Le argues there were
evidentiary and sentencing errors. None of his contentions have merit, and we affirm the
judgment.
FACTS
Because Le asserted self-defense at trial and the issues on appeal are
limited, a brief recitation of the facts will suffice. We recite the facts in the light most
favorable to the judgment. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.)
Le stole a Toyota Tacoma (truck). There may have been a foldable knife
with a three-inch blade in the truck.
Days later, a security guard at a local public agency (agency) saw the truck
drive onto the property after midnight. On a surveillance camera, the guard saw a man,
Le, climb out of the driver’s side window. He saw another man, Desmond Jackson, get
out of the front passenger door, retrieve a backpack, stumble, and fall on the ground. Le
drove away. The guard called 911.
Police officers arrived and found Jackson riddled with stab wounds to his
upper torso. Officers searched him but found no weapons, drugs, or drug paraphernalia.
At the hospital, Jackson refused to say what happened. He had between
16 and 18 stab wounds to his neck, chest, and back, a fractured rib, and a lacerated lung.
His injuries were potentially life-threatening if left untreated. His urine sample
preliminarily tested positive for amphetamine and tetrahydrocannabinol (THC). Jackson
passed away months later from unrelated causes.
Surveillance video, physical evidence, forensic evidence, and eyewitness
evidence led police to Le; they found no weapon. Officers arrested Le at his parents’
house. In his room, they found keys to the truck and what appeared to be
methamphetamine and drug paraphernalia. Le’s mother (Mother) told a detective that
she would search Le for knives and lighters each time he left the house.
2
An amended information charged Le with attempted murder (Pen. Code,
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§§ 664, subd. (a), 187, subd. (a) (count 1)), and unlawful taking of a vehicle (Veh. Code,
§ 10851, subd. (a) (count 2)). As to count 1, the information alleged Le inflicted great
bodily injury (§ 12022.7, subd. (a)) and used a deadly weapon (§ 12022, subd. (b)(1)).
It also alleged the following aggravating factors as to count 1: the offense involved great
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violence and great bodily harm (Cal. Rules of Court, rule 4.421(a)(1) ); Le was armed
with and used a weapon (rule 4.421(a)(2)); Le had previously engaged in violent conduct
(rule 4.421(b)(1)); Le suffered prior convictions (rule 4.421(b)(2)); and Le suffered a
prior prison term (rule 4.421(b)(3)).
Before trial, the parties litigated in limine motions concerning Le’s and
Jackson’s prior convictions, which we discuss below. At trial, after the prosecution’s
evidence, Le testified.
Le stated he was in the truck smoking methamphetamine when a stranger,
Jackson, asked him for a ride. Le agreed. After stopping at a gas station, he got on the
freeway. He started to doze but Jackson screamed, which caused him to get off the
freeway.
Le drove to the agency’s parking lot and parked far away to smoke
methamphetamine to wake up. Le looked for his drugs in the cup holder, but they were
gone. He asked Jackson if he saw his drugs.
Jackson showed the bag of drugs with his left hand and a knife with his
right hand. Before Jackson could finish saying something, Le grabbed the knife blade
with his left hand and Jackson’s right wrist with his right hand. Jackson pushed the knife
towards Le. Le struggled to turn the knife towards Jackson and “poke[d] him in the chest
1
All further statutory references are to the Penal Code, unless otherwise
indicated.
2
All further references to rules are to the California Rules of Court.
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one time.” After Jackson got on top of him, Le got the knife from him and “poke[d] him
in his back a couple times.” Le did not intend to kill Jackson—he was acting in self-
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defense. Their struggle for control of the knife spilled into the backseat.
When Jackson regained control of the knife, Le climbed out of the driver’s
side window because he feared for his life. He opened the driver’s side door to see if
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Jackson was in the truck. Seeing he was not, Le got back in the truck. When Jackson
opened the passenger side door, Le panicked and got out of the truck. Le looked for
Jackson and maybe saw him outside the truck.
When Le got back in the truck, Jackson “shut the door or something like
that.” Le drove away. He later found the knife on the passenger’s side floor between the
seat and the door; it was not his. He dumped the knife in a trashcan.
Le admitted Mother searched him for knives and lighters when he left the
house. He also admitted he sold drugs.
After the close of evidence, the trial court informed the jury Le suffered
misdemeanor convictions in 2013 and 2020 for possession of a switchblade. As to Le,
the parties stipulated to the following: “‘In 2015, . . . Le was convicted of a misdemeanor
for unlawfully possessing flammable material and an incendiary device near a home with
the intent to use the material and device to burn a structure. He was also convicted of a
misdemeanor for threatening [a victim] to commit a crime which would result in great
bodily injury and with the intent it be taken as a threat. In 2017, . . . Le was convicted of
a felony for unlawfully possessing flammable material and an incendiary device near a
home with the intent to use the material and device to burn a structure.’” With respect to
3
Le’s trial counsel argued he acted in self-defense and the amount of force
was reasonable because Jackson “kept coming at him.”
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Surveillance video showed Jackson in the truck.
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Jackson, the parties stipulated he suffered felony convictions in 2009 and 2012 for assault
and the 2017 felony conviction for assault with a deadly weapon, “specifically his teeth.”
The jury acquitted Le of attempted murder but convicted him of attempted
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voluntary manslaughter. The jury found true he personally used a deadly weapon and
inflicted great bodily injury (§§ 12022.7, subd. (a), 12022, subd. (b)(1); rule 4.421(a)(1),
(2)).
At the sentencing hearing, which we discuss below in greater detail, the
trial court sentenced Le to the upper term of five years six months on count 1 because he
used a knife to stab the victim 19 times. The court imposed a consecutive three years on
the great bodily injury enhancement and struck the weapon enhancement. With respect
to count 2, the court imposed a consecutive sentence of eight months. Le’s total prison
term was nine years two months.
DISCUSSION
I. Exclusion of Evidence
Le argues the trial court abused its discretion by excluding a portion of the
factual basis of Jackson’s 2017 conviction. We disagree.
A. Background
Before trial, the prosecution filed an in limine motion to limit evidence of
Jackson’s character for violence (Evid. Code, § 352). Recognizing a defendant may offer
evidence of the victim’s character for violence to show he acted in conformity with that
character trait (Evid. Code, § 1103, subd. (a)(1)), the prosecution stated it would stipulate
Jackson suffered a 2017 conviction for assault with a deadly weapon (§ 245, subd. (a)(1))
(2017 conviction). The prosecution, however, objected to admission of the factual basis
of his guilty plea, specifically that “‘[He] did willfully and unlawfully commit an assault
upon the [victim] with a deadly weapon and instrument, namely [his] teeth, which [he]
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It also convicted him of count 2.
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used to bite through and off [the victim’s] ear.’” The prosecution argued the underlying
facts were inflammatory and unnecessary to establish Jackson was violent. The
prosecutor added that if Le offered evidence of Jackson’s character for violence, the
prosecution would offer evidence Le suffered two convictions for possessing arson
materials and one conviction for making criminal threats.
Le filed an in limine motion seeking to admit evidence of Jackson’s prior
convictions. Citing to Evidence Code section 1103, subdivision (a)(1), he sought to
admit evidence of the 2017 conviction and the factual basis for Jackson’s plea.
At a hearing, Le’s trial counsel sought admission of both the 2017
conviction and the factual basis for the plea. The prosecutor agreed the 2017 conviction
was admissible but argued that was sufficient to establish Jackson’s character for
violence. The prosecutor contended the factual basis was irrelevant because this case
involved a knife and it was inflammatory because it suggested Jackson bit the victim’s
entire ear off. The prosecutor did not object to including the portion that stated the
deadly weapon was his teeth. Le’s trial counsel sought admission of the entire factual
basis. After noting the language at issue was not an element of the crime, the trial court
took the matter under submission. After addressing the admissibility of Jackson’s other
prior convictions to establish his violent character, the court returned to the 2017
conviction. The court ruled it would exclude the language Jackson bit off the victim’s ear
because it was dissimilar to the weapon in this case, a knife, and it was unduly
prejudicial.
The trial court next considered the prosecution’s motion to admit evidence
of Le’s character for violence. Le’s trial counsel agreed the prosecution had a right to
offer that evidence in rebuttal. The prosecutor stated Le suffered two convictions in 2015
(possession of arson materials and making criminal threats) and one conviction in 2017
(possession of arson materials). When the court asked what facts he sought to introduce
from these convictions, the prosecutor indicated he and Le’s counsel would draft a
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stipulation. After a discussion concerning whether possession of arson materials was an
act of violence, the court asked Le’s counsel for a response. Counsel stated he would
work with the prosecutor to draft a stipulation. After reviewing the relevant plea
agreements, the court explained the factual bases provided evidence of a character for
violence because of the required intent element. The court ruled evidence of Le’s three
prior convictions was admissible.
B. Analysis
Evidence must be relevant to be admissible. (Evid. Code, § 350.) Relevant
evidence is evidence that tends to prove or disprove a disputed consequential fact. (Evid.
Code, § 210; People v. Hardy (2018) 5 Cal.5th 56, 87.)
Evidence Code section 1101, subdivision (a), prohibits the admission of
evidence of a person’s character to prove his conduct on a specified occasion. Evidence
Code section 1103, subdivision (a), provides an exception to that rule, stating, “In a
criminal action, evidence of the character . . . of the victim of the crime for which the
defendant is being prosecuted is not made inadmissible by [s]ection 1101 if the evidence
is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with
the character or trait of character.” However, the trial court may exclude such evidence
pursuant to Evidence Code section 352. (People v. Gutierrez (2009) 45 Cal.4th 789, 827-
828 [exclude if probative value substantially outweighed by undue prejudice].) We
review the trial court’s evidentiary rulings for an abuse of discretion. (People v. Mataele
(2022) 13 Cal.5th 372, 413-414 [we afford trial court great deference in evaluating
whether its ruling was arbitrary].)
Here, the trial court did not abuse its discretion by excluding evidence
Jackson “‘bit[] through and off [the victim’s] ear.’” Although evidence Jackson suffered
a conviction for using his teeth as a deadly weapon was relevant and admissible to
demonstrate he had a character for violence, the resulting injury had little, if any,
probative value. This case involved a knife, not teeth. Additionally, the court performed
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the required balancing and concluded the evidence was unduly prejudicial. Le has not
demonstrated the court’s weighing was arbitrary, capricious, or absurd. (People v.
Parker (2022) 13 Cal.5th 1, 53 [trial court “‘“broad discretion”’” in performing Evidence
Code section 352 balancing].)
Le relies on People v. DelRio (2020) 54 Cal.App.5th 47 (DelRio), to
support his assertion. In that case, the trial court excluded five categories of evidence
demonstrating the victim had a character for violence because defendant was unaware of
the victim’s prior bad acts. (Id. at pp. 53, 55.) The appellate court reversed, stating
whether defendant knew of the victim’s violent conduct was irrelevant under Evidence
Code section 1103. (Id. at pp. 55, 58.) The court explained the following: “‘If this
[violent] character was known to the defendant, the evidence tends to show the
defendant’s apprehension of danger; if it was not known, the evidence nevertheless tends
to show that the victim was probably the aggressor.’ [Citations.]” (Id. at p. 55.)
DelRio is of no assistance to Le because in that case, the trial court
excluded all the evidence of the victim’s character for violence because even though
defendant did not know about the victim’s prior violent conduct, that evidence tended to
show the victim was probably the aggressor. That is not what happened here. The court
allowed Le to offer evidence of Jackson’s three prior assault convictions even though Le
was unaware of the conduct to demonstrate Jackson had a character for violence and was
probably the aggressor. Unlike DelRio, there was no wholesale exclusion of evidence of
Jackson’s prior bad acts.
Le’s primary argument is the trial court erred by excluding the evidence
because it tended to show his conduct was objectively reasonable. Contrary to Le’s
claim, People v. Bates (2019) 35 Cal.App.5th 1 (Bates), does explain an important
distinction.
In Bates, when addressing whether there was instructional error, the court
referenced Evidence Code section 1103 and stated the following: “The admissibility of
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evidence to show a victim’s conformity with a violent character is an entirely different
issue from whether a defendant’s conduct or belief was reasonable when the defendant
had no knowledge of the victim’s violent character. While the former focuses on the
victim’s conduct, the latter focuses on the defendant’s state of mind.” (Bates, supra,
35 Cal.App.5th at p. 11 & fn. 5.)
Here, at trial, Le moved to admit evidence of Jackson’s character for
violence based solely on Evidence Code section 1103. We hesitate to speculate
concerning trial tactics, but it is reasonable to assume Le did not assert his state of mind
as an independent basis for admissibility because at the time of the incident he was
unaware of Jackson’s prior bad acts. Indeed, in his reply brief, Le states “[he] never
contended that the evidence should have been admitted for a purpose other than under
Evidence Code section 1103, subdivision (a)(1).” This is why the Attorney General
contends Le forfeited appellate review of this theory. Nevertheless, under these
circumstances, for the evidence to be relevant to Le’s state of mind he would have had to
have knowledge of Jackson’s prior bad acts. He didn’t.
Le suggests this evidence was relevant because it would explain why after
he got the knife away from Jackson, Jackson acted aggressively and violently and it was
“objectively reasonable” for him to “repeatedly stab” Jackson. Repeatedly stabbing an
unarmed man when he could have fled was not objectively reasonable.
Le complains the trial court’s ruling was one-sided and favored the
prosecution because it excluded a portion of the factual basis of Jackson’s 2017
conviction while admitting the factual basis for his prior convictions. First, Le did not
challenge the trial court’s rulings regarding the prosecution’s motion to admit evidence of
his prior bad acts. Second, the admissibility of evidence requires careful scrutiny of
relevance and undue prejudice as to the proffered evidence, not by comparison to other
evidence. (See People v. Steele (2002) 27 Cal.4th 1230, 1243 [evidence that tends to
prove or disprove a disputed consequential fact relevant].)
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Contrary to Le’s claim, the trial court’s ruling did not violate his federal
constitutional right to present a defense. “[T]he application of the ordinary rules of
evidence under state law does not violate a criminal defendant’s federal constitutional
right to present a defense, because trial courts retain the intrinsic power under state law to
exercise discretion to control the admission of evidence at trial.” (People v. Abilez (2007)
41 Cal.4th 472, 503.) Based on the court’s rulings, the jury heard evidence Jackson
suffered two felony assault convictions and the 2017 conviction for assault with a deadly
weapon, his teeth. From this evidence, the jury could reasonably conclude he had a
character for violence. The court excluded evidence that during the 2017 incident he
used his teeth to bite through or off the victim’s ear. The exclusion of this evidence on a
subsidiary point did not prevent Le from presenting his defense that Jackson was innately
violent. (People v. Rogers (2013) 57 Cal.4th 296, 346 [excluding defense’s evidence on
minor point does not impair accused’s due process right to present defense].)
Thus, the trial court did not abuse its discretion by excluding a portion of
the factual basis of Jackson’s 2017 conviction. Because we conclude the court did not
err, we need not address Le’s contention he was prejudiced by the court’s evidentiary
ruling.
II. Sentencing
Le argues the trial court committed two sentencing errors. Neither
contention has merit.
A. Background
Both parties filed sentencing briefs. In Le’s, he stated there was one
mitigating factor, Jackson was the initiator, aggressor, or provoker. (Rule 4.423(a)(2).)
The probation report indicated Le was a longtime methamphetamine user and took two
medications to treat mental illness. The report included several aggravating
circumstances, including the offense involved great violence and great bodily harm (rule
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4.421(a)(1)), and Le was armed with a weapon (rule 4.421(a)(2)). The report included no
mitigating circumstances.
At the April 2022 sentencing hearing, the trial court stated it had read and
considered the probation report and the sentencing briefs. Citing to section 1170, the
court stated it had to impose the middle term unless the defendant stipulated to or the jury
found true aggravating circumstances. The court added it could not impose the upper
term based on the fact of any enhancement upon which the court imposes sentence. The
court explained it had to impose the middle term because the two aggravating
circumstances were the same as the enhancements. Its tentative sentence on count 1 was
the middle term of three years plus three years for the great bodily injury enhancement
6
and one year for the deadly weapon enhancement for a total of seven years.
The prosecutor requested the trial court impose the upper term. The
prosecutor stated that although he did not submit the three additional aggravating
circumstances to the jury, the court could rely on them because Le admitted them when
he testified. He also cited to Mother’s testimony she patted him down to establish Le had
a character for violence.
The trial court stated it did not disagree with the prosecutor’s arguments but
section 1170, subdivision (b), required the aggravating factors to be found true by the
jury. The prosecutor requested the court dismiss the weapon enhancement (§ 12022,
subd. (b)(1)) and rely on the weapon aggravating circumstance (rule 4.421(a)(2)) to
impose the upper term.
Le’s trial counsel said it was inappropriate to change the sentence after the
trial court announced its tentative sentence. After the court replied that was the purpose
of the tentative sentence, counsel contended the fact the court intended to impose
6
The tentative sentence on count 2 was a consecutive eight months.
11
consecutive sentences was an appropriate sentence. The court imposed sentence as
detailed above.
B. Analysis
1. Enhancement
Relying on Senate Bill Nos. 567 and 81, both effective January 1, 2022,
before the sentencing hearing in this case, Le contends the trial court erred by striking the
weapon enhancement and relying on the weapon aggravating circumstance to impose the
upper term on count 1. Not so.
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3)
(SB 567) amended section 1170 by making the middle term the presumptive sentence for
a term of imprisonment unless certain circumstances exist. (§ 1170, subd. (b)(1), (2).)
The trial court may now impose an upper term sentence only when there are
circumstances in aggravation and the facts underlying the aggravating circumstances
have been stipulated to by the defendant or found beyond a reasonable doubt by the trier
of fact. (§ 1170, subd. (b)(2).) Section 1170, subdivision (b)(5), provides “[t]he court
may not impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law.” The bill’s author explained that in this
period of mass incarceration, defendants must be given the opportunity to refute alleged
aggravating acts to ensure the harshest sentences are appropriate and reverse the “carceral
system.” (Assem. Floor Analysis, Sen. 3d reading analysis of Sen. Bill No. 567 (2021-
2022 Reg. Sess.) as amended Sept. 3, 2021, p. 2.) Rule 4.420(g) provides as follows:
“To comply with section 1170[, subdivision] (b)(5), 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.”
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Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1)
(SB 81) amended section 1385 to include subdivision (c), which provides that
“[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the
furtherance of justice to do so, except if dismissal of that enhancement is prohibited by
any initiative statute.” (§ 1385, subd. (c)(1).) Section 1385, subdivision (c)(2), provides
as follows: “In exercising its discretion under this subdivision, the court shall consider
and afford great weight to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of
one or more of these circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety.” One of the mitigating circumstances is: “Multiple enhancements are
alleged in a single case. In this instance, all enhancements beyond a single enhancement
shall be dismissed.” (§ 1385, subd. (c)(2)(B).) The bill’s author explained that in this
time of mass incarceration, the time for the enhancement was often greater than the time
for the crime and a court should impose an enhancement only when it protects the public.
(Assem. Floor Analysis, Sen. 3d reading analysis of Sen. Bill No. 81 (2021-2022 Reg.
Sess.) as amended Aug. 30, 2021, p. 2.)
Citing to section 1170’s and section 1385’s legislative history, Le contends
the trial court erred because “the Legislature intended to create a more humane criminal
justice system . . . by ‘reversing’ [California’s] carceral system and ‘the mass
7
incarceration trend.’” His public policy argument fails because a statute’s plain
7
Le questions the Attorney General’s citation to a legislator’s letter
concerning SB 81. He cites to case authority that holds an individual legislator’s
statements, including the author’s statements, do not represent the Legislature’s intent.
(Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062.) This is perplexing
because Le’s argument on this issue rests entirely on SB 567’s and SB 81’s authors’
statements.
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language is the first and best indicator of the Legislature’s intent. (People v. Licas (2007)
41 Cal.4th 362, 367.) The plain language of neither section prohibited the court from
striking the weapon enhancement and relying on the weapon aggravating circumstance to
impose the upper term on count 1. We decline Le’s invitation to read these sections to
conform to the “spirit” of SB 567 and SB 81 when neither section prohibited the court’s
sentencing choices.
Relying on section 1385, subdivision (c)(2)(B), Le complains multiple
enhancements are a mitigating circumstance, but the trial court struck the weapon
enhancement to increase the sentence not reduce it. He notes the court could have
stricken the three-year great bodily injury enhancement but instead struck the one-year
weapon enhancement. A trial court enjoys broad discretion in making its sentencing
choices and those choices will be affirmed on appeal unless there is a clear showing that
the trial court’s actions were arbitrary or irrational. (People v. Sandoval (2007)
41 Cal.4th 825, 847.)
Finally, Le states rule 4.420(g) can also be read to conform to the spirit of
SB 81, and if it cannot, statutes trump rules. Again, the plain language of the rules of
court governs and rule 4.420(g) authorized the trial court’s choice to strike the weapon
enhancement and use the fact Le used a weapon as an aggravating factor to impose the
upper term. (In re Marriage of Lin (2014) 225 Cal.App.4th 471, 475 [rules of statutory
construction govern interpretation of rules of court].) Additionally, neither section 1170
nor section 1385 trump rule 4.420(g) because there is nothing in those sections that
We deny the Attorney General’s motion to take judicial notice of the
legislative history of SB 567 and SB 81. “‘A motion for judicial notice of published
legislative history, such as the . . . analysis here, is unnecessary. [Citation.] “Citation to
the material is sufficient. [Citation.] We therefore consider the request for judicial notice
as a citation to those materials that are published.” [Citation.]’ [Citation.]” (Grassi v.
Superior Court (2021) 73 Cal.App.5th 283, 290 (Grassi).)
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forbade the court’s sentencing choice in question. Finally, when SB 567 and SB 81 went
into effect, rule 4.420(g)’s predecessor, rule 4.420(c), held similarly. “We presume the
Legislature ‘was aware of existing related laws’ when it enacted [the statute], and that it
‘intended to maintain a consistent body of rules.’ [Citation.]” (Grassi, supra,
73 Cal.App.5th at p. 307.) Had the Legislature intended to prohibit a trial court from
striking an enhancement to rely on the fact of the enhancement as an aggravating
circumstance to impose an upper term, it could have done so. In sum, Le has not shown
the court was precluded from striking the weapon enhancement and relying on the
weapon aggravating circumstance to impose the upper term on count 1 or that it abused
its discretion by doing so.
2. Mitigating Factors
Acknowledging his trial counsel did not assert his mental illness and drug
addiction were mitigating circumstances, Le claims the trial court abused its discretion
when it disregarded these mitigating circumstances and remand is required. Anticipating
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the Attorney General’s forfeiture argument, Le states he received ineffective assistance
of counsel. On this record, we cannot conclude the court erred or Le was prejudiced.
Generally, “unless the record affirmatively reflects otherwise, the trial court
will be deemed to have considered the relevant criteria, such as mitigating circumstances,
enumerated in the sentencing rules. [Citation.]” (People v. Zamora (1991)
230 Cal.App.3d 1627, 1637.) The record included evidence to demonstrate Le suffered
from mental illness and drug addiction. Both are mitigating circumstances under the
California Rules of Court. (Rule 4.423(b)(2), (4).) Pursuant to Zamora, we can conclude
the court considered the mitigating circumstances and found them unpersuasive.
8
“[A] defense attorney who fails to adequately understand the available
sentencing alternatives, promote their proper application, or pursue the most
advantageous disposition for his client may be found incompetent. [Citations.]” (People
v. Scott (1994) 9 Cal.4th 331, 351.)
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On this record, Le’s claim he received ineffective assistance of counsel also
fails. “To obtain relief, he ‘must prove “‘that counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms, and that
counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists
that, but for counsel’s failings, the result would have been more favorable to the
defendant.’”’ [Citation.]” (In re Champion (2014) 58 Cal.4th 965, 1007.)
Here, Le’s trial counsel did not assert Le’s mental illness or drug addiction
were mitigating circumstances in his sentencing brief or at the sentencing hearing. His
lone mitigating circumstance was Jackson was the aggressor. On this record, we cannot
conclude trial counsel’s representation was objectively unreasonable. Le testified he
feared for his life when Jackson brandished a knife. Counsel presented no evidence from
a mental health or addiction expert. During closing argument, counsel argued zealously
that Le feared for his life when Jackson brandished a knife and “kept coming at him.”
Based on the evidence and argument, counsel likely believed he had a righteous claim of
self-defense. To argue in the alternative, that psychosis or drugs contributed to Le’s
conduct, would have been inconsistent and likely would have undercut his defense and
lessened any possibility of a complete defense verdict.
Additionally, it was not reasonably probable Le would have received a
more favorable result had counsel raised these mitigating circumstances. The trial court’s
comments at the sentencing hearing established it considered this a vicious crime, twice
mentioning Le stabbed Jackson 18 or 19 times. We can reasonably conclude the court
considered Le’s conduct aggravated. On this record, Le has not established the court
erred or that he received ineffective assistance of counsel. We note a habeas corpus
petition is a better vehicle for deciding an ineffective assistance of counsel claim.
(People v. Carter (2005) 36 Cal.4th 1114, 1189.)
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DISPOSITION
The judgment is affirmed. The Attorney General’s motion for judicial
notice is denied.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
MOTOIKE, J.
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