People v. SanMiguel CA2/6 ( 2024 )

Filed 10/8/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B328160
(Super. Ct. No. 2022002116)
Plaintiff and Respondent, (Ventura County)
v.
JOEL SANMIGUEL,
Defendant and Appellant.
Joel SanMiguel appeals from a judgment following a trial
at which the jury found him guilty of willful, deliberate, and
premediated attempted murder (Pen. Code,1 §§ 664, 187, subd.
(a), 189) (count 1) and assault with a deadly weapon (id., § 245,
subd. (a)(1)) (count 2). As to both counts, the jury found true
allegations that SanMiguel personally inflicted great bodily
injury. (Id., § 12022.7, subd. (a).) As to count 1, the jury also
found SanMiguel personally used a deadly and dangerous
Pursuant to California Rules of Court, rule 8.1110, this
*
opinion is certified for partial publication. The portions of this
opinion to be deleted from publication are identified as those
portions between double brackets, e.g., [[/]].
weapon. (Id., § 12022, subd. (b)(1).) The court sentenced
SanMiguel to a total term of 11 years to life. We affirm.
FACTS
Rosario Soto lived with his girlfriend, Emperatriz
Marroquin, at a homeless encampment in Thousand Oaks known
as “the Jungle.” Marroquin had been friends with SanMiguel for
three or four years and knew him as “Capi.” SanMiguel did not
live at the Jungle but visited frequently.
Events of January 8, 2022
At about 8:00 p.m. on January 8, 2022, Soto and Marroquin
were in their small, wooden home at the Jungle when they heard
a disturbance. They stepped outside, and Soto put on a
headlamp. Marroquin saw SanMiguel and Hugo Arias running
toward a man she knew as Mike. SanMiguel was holding a thick,
black metal bar and Arias had a baseball bat. SanMiguel and
Arias attacked Mike, but he was able to get away.
Soto’s headlamp illuminated the attack. SanMiguel
approached Soto and told him to turn off the headlamp. Soto
tried to comply but could not turn it off. SanMiguel struck Soto
in the head with the metal bar. Soto fell to the ground
unconscious.
Marroquin begged SanMiguel to leave Soto alone, but
SanMiguel took the bat from Arias and struck Soto on his legs or
feet with it. Still unconscious, Soto did not react. Marroquin got
down on the ground and placed her body over Soto to protect him.
SanMiguel struck Soto on his head right next to Marroquin’s
face. SanMiguel told Marroquin to move. She did not move and
again begged SanMiguel to leave Soto alone. SanMiguel and
Arias walked away.
2
Marroquin called 911. She told the operator that the
person who hit Soto with a metal bar and bat was an older
Hispanic person named Capi. Sheriff’s Deputy Paul Zamora
responded to the call. He found Soto lying on the ground with a
large laceration to his head.
Zamora asked Soto several open-ended questions, but Soto
did not respond. Because the radio dispatch call identified Capi
as a suspect, Zamora asked Soto, “Is Capi the one that did this to
you?” Soto nodded his head up and down two or three times.
Zamora said the nodding was a “very deliberate act.” Soto was
not moving his head from side to side. “It was just a straight up
and down head nod.” Zamora was wearing a body camera but the
glare from his flashlight obscured Soto’s head.
An ambulance took Soto to the hospital where he remained
for three days. On discharge Soto had 10 staples in his head.
Sheriff’s deputies went to SanMiguel’s home. His wife
answered the door. A deputy called out SanMiguel’s name and a
male voice responded. A deputy looking through a window could
see SanMiguel moving toward the back of the house. The deputy
heard a sliding glass door open and the sound of someone trying
to climb the back fence. The deputy saw SanMiguel at the rear of
the residence. The deputy shouted, “Sheriff’s Department, stop.”
SanMiguel did not comply. He was hiding in the backyard when
deputies arrested him.
The deputies took SanMiguel to the Thousand Oaks police
station. After being advised of his rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 430, he agreed to talk. SanMiguel said
that on January 8, 2022, he had gone to the park with his son in
the late morning and to a liquor store between 2:00 and 3:00 p.m.
The park and store are near the Jungle. But he claimed he was
3
at home with his children when Soto was assaulted. He did not
see anyone who could testify to his whereabouts that day.
Michelle Rodriguez testified that on the night of January 8,
2022, she heard SanMiguel’s distinctive voice near her tent in the
Jungle.
Jessica Geiser, an intelligence analyst with the sheriff’s
department, testified that records of SanMiguel’s cell phone show
him to have been in the vicinity of the Jungle from between 7:18
p.m. and 9:11 p.m. on the night in question. Had SanMiguel been
at home with his children that night, it is unlikely his cell phone
would have used the same cell towers.
(a) Defense
SanMiguel testified in his own defense. He denied he went
to the Jungle at any time on January 8, 2022, or any time after
Christmas. He said he had a good relationship with everyone at
the Jungle. He often went to the Jungle to bring blankets and
food or to play baseball. Soto was one of his closest friends. He
last saw Soto two or three weeks before Christmas.
SanMiguel said he did not know Soto had been injured
until he was interviewed by the police after he was arrested.
SanMiguel denied trying to flee from the police when he was
arrested. He said he was in the backyard to put a cover on a
birdcage.
SanMiguel said he was mistaken when he told the police he
was home all evening on January 8, 2022. He had the day
confused with a Mexican holiday. He said at about 5:45 p.m. he
walked 30 minutes to a Vons store. He returned home about 7:30
p.m. and stayed home with his wife and children for the rest of
the night.
4
Robert Aguero testified as an expert in cell phone tower
data analysis. He said determining where SanMiguel’s cell
phone was between 7:18 p.m. and 8:45 p.m. would be pure
guesswork.
(b) Jury Selection
During the trial court’s voir dire, prospective juror S.M.
provided basic information like his name and place of residence.
S.M. had a Hispanic surname. He was a college student studying
film at UC Santa Barbara. He was single with no children and
no prior experience serving as a juror. When the court asked if
he thought he could be a fair and impartial juror on a case like
this, S.M. replied, “I think so.”
In response to a question from SanMiguel’s counsel, S.M.
provided an 85-word answer explaining why he would “[n]ot
necessarily” think a non-testifying defendant was hiding
something or did something wrong. SanMiguel’s counsel later
asked whether S.M. could draw his own conclusions despite his
youth. S.M. stated, “I think I would be considering all the
information that’s presented.” When asked if he could adhere to
his own beliefs, S.M. replied: “I think I would be able to. I think
I have a strong ground to my own thoughts as to what I would
believe.”
The prosecutor asked S.M. whether he would require the
victim to testify to reach a decision. S.M. responded: “I don’t
think I would require him to speak specifically.” The prosecutor
directed no other questions to S.M. in particular.
The prosecutor exercised a peremptory challenge to excuse
S.M., and SanMiguel’s counsel objected based on Code of Civil
5
Procedure section 231.7.2 SanMiguel’s counsel indicated
SanMiguel is of Latino descent and that S.M. was apparently
“the only Latino man left of the 18.”
When asked to justify the strike, the prosecutor noted the
victim in the case was also Hispanic. The prosecutor “wouldn’t
have a reason to kick Hispanic people when [he had] a Hispanic
on Hispanic crime.” The prosecutor indicated S.M.’s “responses
were extremely brief” and S.M. “didn’t have much of anything to
say.” The prosecutor added: “There are other people in the
following six . . . that I believe will be jurors that I prefer more to
[S.M.]” The prosecutor stated a different prospective juror had a
Hispanic surname and he had not challenged her. That
prospective juror ultimately did serve as a trial juror. The
prosecutor concluded his initial justification by asking the court
to make a finding that he “did not violate [section 231.7] by
excusing someone just because he happens to be Hispanic.”
The trial court sought clarification on the explanation. The
prosecutor stated, “It was that [S.M.] had very brief responses,
that he did not have much to say about what my questions were.”
The prosecutor added that S.M. did not fully follow the court’s
orders because he walked out of the courtroom with papers—
apparently, the court’s questionnaire—and walked back in during
breaks. When the court indicated it gave no orders about leaving
with the questionnaire, the prosecutor said: “Okay. Just the fact
that he walked back in when the rest of the jury had already
been excused. . . . [Y]ou look at these small little things of what
jurors are doing and how close they’re paying attention to the
All further statutory references are to the Code of Civil
2
Procedure unless otherwise stated.
6
process, and those are things that you pick up on versus what
other jurors are doing or are not doing.”
The prosecutor continued: “Eye contact that they’re
making, body language that they have, you know, other jurors
are being – I feel like they’re being more attentive. They’re
giving more eye contact to me where he’s kind of looking down. I
don’t feel like he’s being as engaged as other people are, and
there’s no – there’s absolutely no pattern. I have zero intent of
kicking [another prospective juror] who I believe is also a
Hispanic juror.”
The trial court confirmed “exactly what the prosecutor did
say, though, about [S.M’s] body language.” The court said, “I did
notice that too, that [S.M.] has a very flat affect, and he is looking
down most of the time. He is not responding to questions the
same way everybody else does. There is no – he’s not making eye
contact at all. He was doing the same thing with the Court. I did
notice that, and I did take note of that.” The court denied the
section 231.7 objection. The court then noted, “[S.M. entered] the
courtroom at a time when nobody else did, which I don’t think
that’s a violation of a Court order, necessarily, but it shows that
he’s not paying attention to what everybody else is doing . . . .”
DISCUSSION
I. Objection to Peremptory Challenge
SanMiguel contends the trial court erred in denying his
section 231.7 objection to the peremptory challenge of S.M.
Section 231.7, subdivision (a) provides: “A party shall not
use a peremptory challenge to remove a prospective juror on the
basis of the prospective juror’s race, ethnicity, gender, gender
identity, sexual orientation, national origin, or religious
affiliation, or the perceived membership of the prospective juror
7
in any of those groups.” The Legislature implemented a complex
statutory scheme to ensure parties do not violate this prohibition.
Once a party objects to the use of a peremptory challenge
as violative of section 231.7, subdivision (a), the party exercising
the challenge must state the reasons it did so. (§ 231.7, subds.
(b), (c).) The court evaluates those reasons “in light of the totality
of the circumstances,” without speculating on or assuming the
existence of other possible justifications. (Id., subd. (d)(1).) “If
the court determines there is a substantial likelihood that an
objectively reasonable person would view [actual or perceived
cognizable group membership] as a factor in the use of the
peremptory challenge, then the objection shall be sustained. The
court need not find purposeful discrimination to sustain the
objection.” (Ibid.) Indeed, under section 231.7, “an objectively
reasonable person is aware that unconscious bias, in addition to
purposeful discrimination, have resulted in the unfair exclusion
of potential jurors” in California. (Id., subd. (d)(2)(A).)
Section 231.7, subdivision (d)(3) provides a non-exhaustive
list of circumstances the court may consider in evaluating the
reasons given to justify a peremptory challenge. The enumerated
circumstances include whether the objecting party is a member of
the same perceived cognizable group as the challenged juror, as
well as whether the alleged victim or witnesses are not members
of that group. (Id., subd. (d)(3)(A)(i)-(iii).) Trial courts are to
consider “whether the party exercising the peremptory challenge
failed to question the prospective juror about the concerns later
stated by the party as the reason for the peremptory challenge”
(id., subd. (d)(3)(C)(i)), and “[w]hether the party exercising the
peremptory challenge engaged in cursory questioning of the
challenged potential juror” (id., subd. (d)(3)(C)(ii)).
8
Section 231.7, subdivisions (e) and (g) provide two separate
lists of presumptively invalid reasons for exercising a peremptory
challenge. “Each subdivision sets out a distinct process by which
a court determines whether a presumptively invalid reason can
be absolved of that presumption.” (People v. Ortiz (2023) 96
Cal.App.5th 768, 793.)
Section 231.7, subdivision (g)(1) identifies the following
reasons for peremptory challenges as having been “historically
. . . associated with improper discrimination in jury selection:
“(A) The prospective juror was inattentive, or staring or
failing to make eye contact.
“(B) The prospective juror exhibited either a lack of rapport
or problematic attitude, body language, or demeanor.
“(C) The prospective juror provided unintelligent or
confused answers.”
Procedurally, section 231.7, subdivision (g)(2) provides that
these reasons “are presumptively invalid unless the trial court is
able to confirm that the asserted behavior occurred, based on the
court’s own observations or the observations of counsel for the
objecting party. Even with that confirmation, the counsel offering
the reason shall explain why the asserted demeanor, behavior, or
manner in which the prospective juror answered questions matters
to the case to be tried.” (Italics added.)
We review the overall denial of a section 231.7 objection de
novo, but we review the trial court’s express factual findings for
substantial evidence. (Id., subd. (j).) The statute precludes
appellate courts from imputing any findings to the trial court.
(Ibid.) Likewise, the reviewing court can consider only the
reasons stated under section 231.7, subdivision (c)–that is, the
party’s actual justification for the challenge. The court may not
9
speculate about or consider other possible reasons for the
challenge. (Ibid.)
If the appellate court determines the objection was
improperly denied, the error “shall be deemed prejudicial, the
judgment shall be reversed, and the case remanded for a new
trial.” (§ 231.7, subd. (j).)
Analysis
We must determine de novo whether, in light of the totality
of the circumstances, there is a substantial likelihood an
objectively reasonable person would view S.M.’s cognizable group
membership as a factor in the use of the peremptory challenge.
(§ 231.7, subds. (d)(1), (j).) We are limited to the prosecutor’s
stated reasons for challenging S.M. (Id., subds. (c), (j).) The
prosecutor offered the following reasons:
(1) The prosecutor preferred prospective jurors in the next
group of six.
(2) S.M. seemed less attentive than other prospective
jurors, based on eye contact and body language. Other
prospective jurors gave the prosecutor more eye contact, whereas
S.M. was “kind of looking down.” Other prospective jurors
seemed more engaged than S.M.
(3) S.M.’s decision to walk back into the courtroom when
the rest of the jury had already been excused was indicative of
whether he paid close “attention to the process.”
(4) S.M.’s “responses were extremely brief”; S.M. “didn’t
have much of anything to say”; and S.M. “did not have much to
say about what [the prosecutor’s] questions were.”
(5) The prosecutor intended to retain a female Hispanic
prospective juror, who ultimately did serve as a trial juror.
(6) The victim in the case is also Hispanic.
10
We acknowledge the second and third points listed above
are presumptively invalid under section 231.7, subdivision (g).
That subdivision specifically describes inattentiveness; failing to
make eye contact; lack of rapport; and problematic attitude, body
language, or demeanor as having been “historically . . . associated
with improper discrimination in jury selection.” (§ 231.7, subd.
(g)(1).) The prosecutor cited S.M.’s inattentiveness, body
language, and lack of eye contact. The prosecutor also identified
inattentiveness as the significance of S.M. entering the courtroom
when the jury had been excused. The prosecutor’s claim that
S.M. was less “engaged” than other prospective jurors similarly
critiqued some combination of S.M.’s demeanor and
inattentiveness.
Section 231.7, subdivision (g)(2) prescribes the
circumstances under which these presumptively invalid reasons
“can be absolved of that presumption.” (People v. Ortiz, supra, 96
Cal.App.5th at p. 793.) The trial court must confirm the
“asserted behavior occurred.” (§ 231.7, subd. (g)(2).) Here, the
trial court did so. However, “[e]ven with that confirmation, the
counsel offering the reason shall explain why the asserted
demeanor, behavior, or manner in which the prospective juror
answered questions matters to the case to be tried.” (Ibid., italics
added; see Ortiz, at p. 794 [section 231.7, subdivision (g)(2)
contains both “ ‘confirmation’ ” and “ ‘explanation’ ”
requirements].)
We agree with the dissent that one may wonder why
behaviors like inattentiveness would require further explanation.
And we acknowledge that the prosecutor and trial court could
have made a more extensive and thorough inquiry. Nevertheless,
we think reversal is unwarranted.
11
As the People point out, both the prosecutor and the trial
court noted how different S.M. acted from the other jurors. That
he walked back in the courtroom when the other jurors had been
excused caught the attention of both the prosecutor and the
judge. His response to questions was noticeably different than
that of other jurors. In this instance, to attribute his dismissal to
a lack of sensitivity to characteristics of his ethnicity could well
be insulting to S.M.
S.M.’s lack of attention alone was a sufficient reason for his
dismissal. It overcomes the presumption of invalidity under
section 231.7, subdivision (g)(2). The peremptory challenge here
was unrelated to a conscious or unconscious bias. The
prosecution had a legitimate reason to be concerned about S.M.’s
ability to be “fair and impartial.” (Id., subd. (f).) No matter what
a person’s background, race, or economic standing, if the juror
does not pay attention, the juror does not belong on any jury.
We appreciate the Legislature’s concern relating to the
problem of bias, whether explicit or implicit. Nevertheless, no
capable attorney would fail to challenge such a juror unless the
attorney had what is known in the trade as a dead-bang loser.
As I pointed out in my dissent in People v. Uriostegui (2024)
101 Cal.App.5th 271, 283, the trial judge’s ruling is well
supported. It is not necessary for the trial judge to specifically
say on the record, “ ‘I find by clear and convincing evidence the
reasons of the prosecutor for the peremptory challenge bear on
the prospective juror’s ability to be fair and impartial in the
case.’ ” (Ibid.)
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[[II. Hearsay Exception
(a) Spontaneous Statement Exception to Hearsay Rule
SanMiguel contends the trial court abused its discretion
when it admitted the evidence regarding Soto’s head nod as a
spontaneous statement.
Evidence Code section 1240 provides:
“Evidence of a statement is not made inadmissible by the
hearsay rule if the statement:
“(a) Purports to narrate, describe, or explain an act,
condition, or event perceived by the declarant; and
“(b) Was made spontaneously while the declarant was
under the stress of excitement caused by such perception.”
To be admissible as a spontaneous statement “ ‘(1) there
must be some occurrence startling enough to produce . . . nervous
excitement and render the utterance spontaneous and
unreflecting; (2) the utterance must have been before there has
been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective
powers to be yet in abeyance; and (3) the utterance must relate to
the circumstance of the occurrence preceding it.’ [Citation.]”
(People v. Sanchez (2019) 7 Cal.5th 14, 39.)
All the elements of a spontaneous statement exist here: (1)
Soto had just been attacked without warning. He had a deep
gash in his head and had been rendered unconscious. Anyone
would be in a state of nervous excitement sufficient to render his
head nod spontaneous and unreflecting. (2) The head nodding
was made while Soto was still lying on the ground recovering
from being knocked unconscious. His nervous excitement
undoubtedly still dominated, and his reflective powers were still
held in abeyance. (3) Soto’s head nod directly related to the
13
circumstances of the preceding occurrence. In short, the
circumstances here are precisely the circumstances Evidence
Code section 1240 was intended to cover.
SanMiguel argues that Zamora was the declarant, not Soto.
SanMiguel claims Soto merely responded to Zamora’s leading
question. But that the statement is in response to a question
does not make the statement inadmissible under Evidence Code
section 1240. (People v. Pedroza (2007) 147 Cal.App.4th 784,
791.)
SanMiguel argues that the circumstances were not
sufficiently trustworthy to admit the evidence. He points out
that Soto had been generally unresponsive to Zamora’s questions,
and only responded to that one question, and that the head nod
could not be seen on Zamora’s body camera video. He also
suggests the head nod may not have been a nod, but only
movement caused by the paramedics as they were working on
Soto.
But Zamora testified Soto nodded his head in response to
his question, and that the head nodding was a deliberate act.
The factors cited by SanMiguel go to the weight of the evidence,
not its admissibility.
(b) Not Testimonial Hearsay
In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d
1354] (Crawford), the United States Supreme Court considered
the relationship between the Sixth Amendment’s Confrontation
Clause and exceptions to the hearsay rule. The Supreme Court
held that testimonial statements of a witness who did not appear
at a trial violate the Confrontation Clause unless the witness was
unavailable, and the defendant had a prior opportunity for cross-
examination. (Id. at pp. 53-54.) The Crawford rule does not
14
apply to hearsay exceptions that were recognized at the time of
the Sixth Amendment’s adoption. (Id. at p. 56, fn. 6.)
Crawford did not define “testimonial statements.” That
definition was provided in Davis v. Washington (2006) 547 U.S.
813, 822 [165 L.2d.2d 224], as follows: “Statements are
nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.”
SanMiguel argues the circumstances objectively indicate
Zamora’s primary purpose in interrogating Soto was to establish
past events potentially relevant to later criminal prosecution.
But that is not the case. Zamora found Soto lying on the ground
suffering from severe blunt force trauma. The perpetrator was at
large, and public safety was at risk. Zamora needed to identify
the perpetrator to protect public safety.
This case is very similar to People v. Pedroza, supra, 147
Cal.App.4th 784. In Pedroza, the police responded to a call of a
house fire. When they arrived, they found a woman lying on the
ground outside the house suffering from severe burns. The police
asked the woman what happened. She responded that her
husband burned her by throwing gas on her. The woman died of
her burns. Her statement to the police was admitted at
husband’s trial for murder under the spontaneous statement
exception to the hearsay rule.
15
In affirming the trial court, the Court of Appeal determined
that the victim’s statement was not testimonial hearsay. The
officers encountered the victim during an ongoing emergency; the
officers’ conversations with the victim were brief; the statements
were not taken under the calm circumstances of a formal
interrogation; and the victim’s statement did not purport to
describe an event that occurred some time ago. (People v.
Pedroza, supra, 147 Cal.App.4th at pp. 793-794.) The Court of
Appeal also pointed out that it is difficult to identify the
circumstances where a spontaneous statement qualifying under
Evidence Code section 1240 could be considered testimonial.
Such statements by their nature are not made in contemplation
of their testimonial use in a future trial. (Pedroza, at p. 794.)
SanMiguel’s reliance on People v. Cage (2007) 40 Cal.4th
965 is misplaced. In Cage, a sheriff’s deputy was dispatched to
defendant’s residence on report of a family fight. As the deputy
approached the house, he saw a bloody towel and drops of blood.
Inside he found defendant picking up broken glass. The glass top
of a nearby coffee table was missing. The deputy spoke with the
defendant, her mother, and her daughter. The deputy departed,
believing no crime had been committed. About an hour later, the
deputy was dispatched to an intersection a mile or two away to
look for an injured person. The deputy found John, the
defendant’s son, sitting on the curb. John had a large cut on his
face. An ambulance and emergency personnel were already on
the scene. The ambulance transported John to the hospital. The
deputy did not accompany John but went to the hospital “ ‘at a
later point.’ ” (Id. at p. 971.) When the deputy arrived at the
hospital, John was in the emergency room but had not yet been
treated. The deputy asked John what happened. John told him
16
he got into an argument with his mother; his mother pushed him,
and he fell onto the coffee table, breaking the glass top; his
grandmother held him while his mother cut his face with a piece
of glass.
In determining that John’s statement was testimonial
hearsay, our Supreme Court said: “Thus, by the time [the
deputy] spoke with John in the hospital, the incident that caused
John’s injury had been over for more than an hour. The alleged
assailant and the alleged victim were geographically separated,
John had left the scene of the injury, and he thereafter had been
taken to a remote location to receive medical treatment. Though
he apparently had not yet been treated by a doctor when Mullin
questioned him, he was in no danger of further violence as to
which contemporaneous police intervention might be required.”
(People v. Cage, supra, 40 Cal.4th at p. 985.)
Here there are none of the factors that led the Supreme
Court in Cage to conclude the victim’s statement is testimonial
hearsay. When Zamora spoke to Soto, the incident had not been
over for more than an hour. Zamora did not know the location of
the alleged assistant. Soto had not left the scene of the injury.
Whether Soto or other members of the public were in danger was
unknown to Zamora.
III. There Was No Ineffective Assistance of Counsel
SanMiguel contends he received ineffective assistance of
counsel when his counsel failed to object to the dual use of facts
to impose the upper term on count 2.
The trial court sentenced SanMiguel to a total of 11 years
to life consisting of: on count 1, attempted murder, seven years to
life, plus one year for personal use of a dangerous weapon, plus
three years for inflicting great bodily injury; on count 2, assault
17
with a deadly weapon, the upper term of four years, stayed
pursuant to Penal Code section 654.
The following factors in aggravation were found true by the
jury: SanMiguel personally inflicted great bodily injury; the
crime involved great bodily harm and other acts disclosing a high
degree of cruelty, viciousness, or callousness; and SanMiguel was
armed with and used a weapon.
SanMiguel points out that an enhancement may not be
used to impose an upper term unless the court has the power to
strike the enhancement and does so. (Cal. Rules of Court, rule
4.420(g).) In addition, a fact that is an element of the crime being
punished cannot be used to impose the upper term. (Id., rule
4.420(h).) SanMiguel argues that great bodily injury cannot be
used to impose the upper term because it was charged as an
enhancement.
SanMiguel claims that the first two factors in aggravation
are indistinguishable in that they both involve great bodily harm.
But the second factor is distinguishable in that it not only
requires great bodily harm, but also other acts involving a high
degree of cruelty, viciousness, or callousness. Here SanMiguel’s
attack on Soto was entirely unprovoked. He hit Soto on the head
with a metal bar with enough force to render him unconscious.
As Soto was defenseless on the ground and with Marroquin
begging him to leave Soto alone, SanMiguel hit Soto again with a
baseball bat. Finally, Marroquin placed her body over Soto and
continued to beg SanMiguel to leave him alone. SanMiguel hit
Soto in the head again next to Marroquin’s face. SanMiguel
walked away, not caring whether Soto was dead or alive. The
jury’s finding that the crime involved a very high degree of
cruelty, viciousness, or callousness is well supported by the
18
evidence. That the offense was committed with a high degree of
cruelty, viciousness, or callousness is not an element of the
offense or any enhancement alleged here. Thus imposing the
upper term on that basis does not constitute a dual use of facts.
The trial court stated that it chose the upper term on count
2 because of the factors in aggravation found true by the jury.
But it only takes a single aggravating factor to impose the upper
term. (People v. Sperling (2017) 12 Cal.App.5th 1094, 1103.) In
sentencing SanMiguel, the court said, “This case was far more
serious than other case of this type.” The court also stated, “I
find that [SanMiguel] poses an unreasonable risk of public safety
and is likely to offend in the future. This was completely
unprovoked and extremely violent attack on somebody. And
[SanMiguel] has shown absolutely zero insight or remorse as to
why the offense happened.”
If the trial court erred, the error was harmless by any
standard. There is no reasonable doubt that the court would
have imposed the upper term based on the single aggravating
factor that the crime was committed with a high degree of
cruelty, viciousness, or callousness.
Moreover, in order to prevail on the claim of ineffective
assistance of counsel, SanMiguel must demonstrate on appeal
that counsel had no valid tactical reason for his action or failure
to act. If the record on appeal sheds no light on why counsel
acted or failed to act in the manner challenged, the claim of
incompetence must be rejected unless counsel was asked for an
explanation and failed to provide one, or unless there simply
could be no satisfactory explanation. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266.)
19
Here there is a very good reason why counsel would not
object. The trial court sentenced SanMiguel to the four-year
upper term for assault with a deadly weapon, but did not impose
a term for the great bodily injury enhancement. The court could
have imposed the three-year middle term for the assault, plus a
three-year great bodily injury enhancement, for a total of six
years instead of four. Given the trial court’s comments at
sentencing, counsel was wise to leave well enough alone.
IV. Dismissal of an Enhancement on Count 1
SanMiguel contends the trial court erred in refusing to
dismiss an enhancement on count 1.
Penal Code section 1385, subdivision (c) provides in part:
“(1) Notwithstanding 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.
“(2) 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. ‘Endanger
public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.
“[¶] . . . [¶]
“(B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single enhancement
shall be dismissed.” (Italics added.)
20
Here the trial court refused to dismiss an enhancement on
count 1, finding that SanMiguel is a danger to public safety.
SanMiguel argues the words “shall be dismissed” in Penal Code
section 1385, subdivision (c)(2)(B) make dismissal mandatory
notwithstanding the finding of dangerousness.
SanMiguel concedes that every appellate court that has
considered the matter has rejected his argument. After
SanMiguel filed his opening brief, our Supreme Court decided
People v. Walker (2024) 16 Cal.5th 1024. Walker held that the
existence of one or more factors listed in Penal Code section 1385,
subdivision (c)(2) does not mandate the dismissal of the
enhancement. (Walker, at p. 1029.)
Instead, our Supreme Court said, “[I]f the court does not
find that dismissal would endanger public safety, the presence of
an enumerated mitigating circumstance will generally result in
the dismissal of an enhancement unless the sentencing court
finds substantial, credible evidence of countervailing factors that
‘may nonetheless neutralize even the great weight of the
mitigating circumstance such that dismissal of the enhancement
is not in furtherance of justice.’ ” (People v. Walker, supra, 16
Cal.5th at p. 1029, quoting People v. Ortiz (2023) 87 Cal.App.5th
1087, 1098.) Walker makes it clear that dismissal is not
mandatory.]]
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
GILBERT, P. J.
I concur:
YEGAN, J.
21
YEGAN, J., Concurring:
I fully concur in the well-written opinion by Presiding
Justice Gilbert. But I would go further and declare the
methodology of Code of Civil Procedure (C.C.P.) section 231.7,
subdivision (j) unconstitutional. (See People v. Simmons (2023)
96 Cal.App.5th 323, 340-345 (dis. opn. of Yegan, J.) [automatic
reversal aspect of Racial Justice Act (Pen. Code § 745) is
unconstitutional because it usurps California Constitution
“miscarriage of justice” standard which requires an examination
of the entire record before reversal].) Our recent prior appellate
opinion in People v. Uriostegui (2024) 101 Cal.App.5th 271 (opn.
of Baltodano, J., conc. of Cody, J., dis. opn. of Gilbert, P.J.),
should be overruled.1
1 C.C.P. section 231.7, subdivision (j) provides: “The denial
of an objection made under this section shall be reviewed by the
appellate court de novo, with the trial court’s express factual
findings reviewed for substantial evidence. The appellate court
shall not impute to the trial court any findings, including findings
of a prospective juror’s demeanor, that the trial court did not
expressly state on the record. The reviewing court shall consider
only reasons actually given under subdivision (c) and shall not
speculate as to or consider reasons that were not given to explain
either the party’s use of the peremptory challenge or the party’s
failure to challenge similarly situated jurors who are not
members of the same cognizable group as the challenged juror,
regardless of whether the moving party made a comparative
analysis argument in the trial court. Should the appellate court
determine that the objection was erroneously denied, that error
shall be deemed prejudicial, the judgment shall be reversed, and
the case remanded for a new trial.”
Our California Supreme Court has said that dismissal of a
potential juror for racial bias is “structural error.” (People v.
Gutierrez (2017) 2 Cal.5th 1150, 1157-1158.) We are bound by
The legislative attack upon the California Constitution and
the separation of power theory of government continues. This
time, the Legislature dictates, in the context of empaneling a
criminal jury trial, that the dismissal of a juror for perceived
racial basis, is to be viewed wearing “horse blinders.” The
“micromanagement” of C.C.P. section 231.7, subdivision (j)
violates separation of powers jurisprudence. It is akin to statute
telling a plumber how much torque is required when using a pipe
wrench.
The time-honored appellate rule is that a reviewing court
indulges in all reasonable inferences to uphold any ruling on
appeal. (E.g., 9 Witkin, Cal. Procedure, (6th ed. 2021) §§ 385-387,
pp. 420-424.) There has never been a requirement that the exact
reason given by the trial court for its order precludes the
appellate court from using its own judgment in reviewing the
propriety of the order under review. We review the ruling of the
trial court, not its rationale. (E.g., Davey v. Southern Pacific Co.
(1897) 116 Cal. 325, 329-330; Yarrow v. State of California (1960)
53 Cal.2d 427, 438; Rappleyea v. Campbell (1994) 8 Cal.4th 975,
981.) Even an unsound course of reasoning is not fatal to a trial
court order. (People v. Gibson (1987) 195 Cal.App.3d 841, 853;
People v. Patton (1976) 63 Cal.App.3d 211, 219.) If this statute
passes constitutional muster, over a hundred years of Supreme
Court precedent has been “overruled.”
Recently, the California Supreme Court, albeit in another
context reminded everyone that the “‘term “constitution” implies
an instrument of a permanent and abiding nature . . . .’”
this holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) In the last sentence of the statute, the
Legislature has codified the rule.
2
(Legislature of the State of California v. Weber (2024) 16 Cal.5th
237, 256.) I am in complete agreement. The California
Constitution expressly requires that an appellate court affirm a
judgment unless, the court determines there has been a
miscarriage of justice.2 The Legislature cannot, and should not,
mandate a “form over substance” appellate rule purporting to put
a California appellate court in a “straight jacket.” The judiciary
cannot force the executive branch of government to charge
someone with having committed a crime. The judiciary cannot
force the legislative branch of government to enact or refrain
from enacting a statute relating to the definition of crime or
punishment. And, these two branches of government cannot tell
judges how to judge. These are basic “separation of powers”
observations which have stood the test of time. They should not
be abandoned.
I applaud legislative efforts to combat the perception of
racial bias it sees in our judicial system. But the Legislature may
not enact laws which violate our state constitution. Here, the
Legislature has again stepped over the line. Unless, and until,
the California Supreme Court directs otherwise, I will continue to
object to any legislative attempt to “overrule” our California
Constitution. As Justice Musmanno says in his famous
2 California Constitution, article VI, section 13 provides:
“No judgment shall be set aside, or new trial granted, in any
cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to
any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.”
(Ibid., italics added.)
3
dissenting opinion, “I shall continue to dissent . . . until the cows
come home.” (Bosley v. Andrews (1958) 393 Pa. 161, 195,
overruled on another ground in Niederman v. Brodsky (1970) 436
Pa. 401, 413.)
CERTIFIED FOR PUBLICATION.
YEGAN, J.
4
CODY, J., Concurring and Dissenting:
I concur in the majority opinion except for its affirmance of
the judgment and Part I of the Discussion section, from which I
respectfully dissent. The prosecution challenged a prospective
juror for reasons that were legally invalid, unsupported by the
record, or otherwise unpersuasive. In light of the totality of the
circumstances, there was a substantial likelihood an objectively
reasonable person would view cognizable group membership as a
factor in the peremptory challenge. The trial court nevertheless
denied appellant’s motion under Code of Civil Procedure section
231.7.1 This was error. The Legislature has determined such
error is prejudicial.2 I would reverse and remand for a new trial.
For ease of reference, I repeat the reasons the prosecutor
offered to justify striking S.M.:
(1) The prosecutor preferred prospective jurors in the next
group of six.
(2) S.M. seemed less attentive than other prospective
jurors, based on eye contact and body language. Other
prospective jurors gave the prosecutor more eye contact whereas
S.M. was “kind of looking down.” Other prospective jurors
seemed more engaged than S.M. did.
1 Undesignated statutory references are to the Code of Civil
Procedure.
2 I respectfully depart from Justice Yegan’s view that the
methodology of section 231.7, subdivision (j) is unconstitutional.
“Because the state constitution does not limit the Legislature’s
power to define a miscarriage of justice, we must conclude it has
properly exercised its authority to do so here.” (People v.
Simmons (2023) 96 Cal.App.5th 323, 339.)
(3) S.M.’s decision to walk back into the courtroom when
the rest of the jury had already been excused. This behavior was
indicative of whether S.M. paid close “attention to the process.”
(4) S.M.’s “responses were extremely brief”; S.M. “didn’t
have much of anything to say”; and S.M. “did not have much to
say about what [the prosecutor’s] questions were.”
(5) The prosecutor intended to retain a female Hispanic
prospective juror, who ultimately did serve as a trial juror.
(6) The victim in the case is also Hispanic.
I agree with the majority that the reasons outlined in the
second and third points listed above are presumptively invalid
under section 231.7, subdivision (g). I also agree the trial court
confirmed the “asserted behavior occurred.” (§ 231.7, subd.
(g)(2).)
I disagree, however, with the majority’s conclusion that the
presumption of invalidity was overcome. (Maj. opn. ante, at p.
12.) The prosecutor never explained why S.M.’s behavior
“matter[ed] to the case to be tried.” (§ 231.7, subd. (g)(2).)
Section 231.7 subdivision (g)(2) expressly requires such an
explanation to rehabilitate a presumptively invalid reason.
As recently articulated in People v. Caparrotta (2024) 103
Cal.App.5th 874, 890-891: “[T]he only way to rebut the
presumption of invalidity is by applying the statutorily
prescribed two-step process of (1) confirmation of the behavior by
the trial court, and (2) explanation by counsel of why the
behavior matters to the case. If the presumption of invalidity for
a particular reason identified by counsel is not rebutted through
the two-step procedure set forth in subdivision (g)(2) of section
231.7, that reason must be treated as conclusively invalid. In
other words, the trial court must treat as conclusive the
2
presumption that the reason identified by counsel was actually
based on ‘race, ethnicity, gender, gender identity, sexual
orientation, national origin, or religious affiliation,’ or perceived
membership in any such group, as prohibited by section 231.7,
subdivision (a).”
Because the prosecutor failed to explain why S.M.’s
behavior mattered in this case, I must treat as conclusive the
presumption that he was excused for invalid, discriminatory
reasons.
One may well wonder why behaviors like inattentiveness
would require further explanation. Our function, however, is not
to evaluate the wisdom of the Legislature’s choices. Rather,
“‘“‘our fundamental task here is to determine the Legislature’s
intent so as to effectuate the law’s purpose.’”’” (People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141.) We are not at liberty to
delete the unambiguous explanation requirement. (See, e.g.,
Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 822
[“‘“Appellate courts may not rewrite unambiguous statutes”’”].)
To the extent any ambiguity exists, the Legislature recorded its
intent “that this act be broadly construed to further the purpose
of eliminating the use of group stereotypes and discrimination,
whether based on conscious or unconscious bias, in the exercise of
peremptory challenges.” (Stats. 2020, ch. 318, § 1, subd. (c).) I
believe my interpretation is consonant with this capacious intent.
The prosecutor’s remaining reasons for challenging S.M.
are unsupported by the record or are otherwise unpersuasive.
The prosecutor’s unelaborated preference for other prospective
jurors over S.M. lacks explanatory value. Implicit in every
rational peremptory challenge is a belief that other prospective
jurors would be more favorable in some respect. Simply making
3
that universal assumption explicit does not explain the
prosecutor’s decision in this instance.
The brevity of S.M.’s responses is an unconvincing
rationale. The record shows not all S.M.’s responses were brief.
S.M. offered an 85-word reply to one of the several questions
counsel posed specifically to him. S.M.’s responses to counsels’
other questions were only one or two sentences each, but he did
not offer, for example, one-word or two-word answers. The
court’s voir dire largely sought basic biographical information
inconducive to lengthy reply.
Even granting S.M.’s answers were brief, however, it is
unclear why brief answers made S.M. an undesirable juror. To
the extent they indicated his lack of attention or a problematic
demeanor, this rationale is invalid under section 231.7,
subdivision (g), for the reasons discussed above.
Moreover, the prosecutor engaged in “cursory questioning”
of S.M. and did not question him about the concerns of
inattentiveness or disinterest—circumstances the statute invites
courts to consider. (§ 231.7, subd. (d)(3)(C)(i), (ii).) The
prosecutor directed a single question to S.M. specifically. The
prosecutor asked whether S.M. would require the victim to testify
to reach a decision. S.M. responded: “I don’t think I would
require him to speak specifically.” This response addressed the
prosecutor’s question. The prosecutor made no other effort to
probe S.M. specifically on this or any other topic. A party cannot
pose a single, straightforward question to a prospective juror and
then defeat a section 231.7 objection by claiming the juror’s
responses were “very brief” and the juror “did not have much to
say” about the party’s questions. Otherwise, relying on many
prospective jurors’ unwillingness to answer questions posed to
4
the group, a party could remove members of cognizable classes
with impunity simply by questioning them cursorily.
The prosecutor’s final two reasons—the presence of a
Hispanic juror he did not challenge and the victim also being
Hispanic—did not attempt to explain why he removed S.M. That
the prosecutor did not challenge a female Hispanic juror does not
explain why he did challenge S.M. Nor does the victim’s race or
ethnicity explain why S.M. was an undesirable juror from the
prosecutor’s perspective. Instead, the prosecutor offered these
two justifications to refute a claim of bias under section 231.7.
Neither does so. A party need not remove all prospective
jurors of a cognizable group for a section 231.7 objection to
succeed. The statute does not support this type of binary, all-or-
nothing thinking. Furthermore, while the victim in the case is
Hispanic, appellant is as well. Section 231.7 identifies the shared
group membership between appellant and S.M. as a circumstance
the court may consider. (See § 231.7, subd. (d)(3)(A)(i).)
The prosecutor’s reliance on unsupported or unpersuasive
reasons increases the likelihood S.M.’s cognizable group
membership factored into the challenge, especially from the
perspective of an objectively reasonable person who “is aware
that unconscious bias, in addition to purposeful discrimination,
have resulted in the unfair exclusion of potential jurors” in
California. (Id., subd. (d)(2)(A).) Moreover, even if some of the
prosecutor’s reasons were supported by the record or were
otherwise appropriate, the presence of conclusively invalid
reasons required the court to sustain the objection under section
231.7. (§ 231.7, subd. (d); Caparrotta, supra, 103 Cal.App.5th at
p. 896 [“[T]he Legislature did not intend to allow a peremptory
challenge to be exercised, even in part, for an invalid reason”].)
5
I believe that, in light of the totality of the circumstances,
there is a substantial likelihood an objectively reasonable person
would view S.M.’s cognizable group membership as a factor in the
peremptory challenge. (§ 231.7, subd. (d)(1).) Under section
231.7, the error is prejudicial, and reversal and remand for a new
trial is required. (Id., subd. (j).)
In reaching my conclusion, “[I] need not, and do not,
determine whether the prosecutor was motivated by bias. (People
v. Uriostegui (2024) 101 Cal.App.5th 271, 281.) The statute’s
contemplation of both implicit and explicit bias obviates this
inquiry. I also do not attribute the prosecutor’s challenge or
court’s ruling “to a lack of sensitivity to characteristics of [S.M.’s]
ethnicity . . . .” (Maj. opn. ante, at p. 12.) The statute addresses
reasons historically associated with improper discrimination in
jury selection. Neither the statute nor I endorse the belief that
those reasons, in fact, accurately describe any group.
I expect that counsel challenging prospective jurors will
avail themselves of section 231.7’s framework to address
potential implicit biases. The explanation requirement, for
example, forces attorneys to articulate a connection between
certain historically discriminatory reasons for a peremptory
challenge and the current case. (§ 231.7, subd. (g)(2).) An
attorney’s inability to do so increases the risk that bias factored
into the challenge. Here, the prosecutor simply failed to offer the
requisite explanation. I would reverse and remand for a new
trial.
CERTIFIED FOR PUBLICATION
CODY, J.
6
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Matthew Alger, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Blythe J. Leszkay, Deputy
Attorneys General, for Plaintiff and Respondent.