People v. Tirado CA4/1

Filed 8/25/22 P. v. Tirado CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079572
Plaintiff and Respondent,
v. (Super. Ct. No. SCS318143)
JULIO M. TIRADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Albert T. Harutunian III, Judge. Remanded.
Siri Shetty, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, and
Arlene Sevidal, Randall D. Einhorn and Susan Elizabeth Miller, Deputy
Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Julio M. Tirado of assault on a peace officer by means
likely to produce great bodily injury (Pen. Code,1 § 245, subd. (c); count 1),
battery on a peace officer with injury (§ 243, subd. (c)(2); count 2), and driving
under the influence of a drug (Veh. Code, § 23152, subd. (f); count 3). After
noting several circumstances in aggravation, the trial court sentenced Tirado
to the upper term of five years on count 1 and 180 days on count 3 to run
consecutive, under former section 1170. It also imposed the upper term of
three years on count 2 and stayed the sentence.
On January 1, 2022, while Tirado’s appeal was pending, Senate Bill
No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) went into effect. It amended
section 1170 by limiting the trial court’s former broad discretion in
sentencing. Section 1170 now restricts the trial court’s ability to consider
certain aggravating factors at sentencing and establishes the middle term as
the presumptive sentence. (§ 1170, subds. (b)(1) & (2).)
Tirado raises two issues on appeal. First, he contends that substantial
evidence does not support his conviction for assault on a peace officer by
means likely to produce great bodily injury. Second, he requests that we
remand the matter for resentencing due to the recent changes to section 1170
under Senate Bill 567. We find that substantial evidence supports Tirado’s
conviction. However, we remand the matter for resentencing in light of
Senate Bill 567.
1 Further section references are to the Penal Code unless otherwise
specified.
2
II
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2021, a border patrol agent witnessed Tirado driving
northbound against traffic in the emergency lane of the southbound side of
Interstate 5. The agent called 9-1-1.
Officer Erik Smith responded to the call. Officer Smith observed a van
traveling northbound at a high rate of speed in the number 1 and 2
southbound lanes of Interstate 5. Officer Smith drove north on the
northbound lanes, paralleling the van.
Officer Smith verbally commanded Tirado to stop or pull over to the
center divider using his patrol vehicle’s loudspeaker, but Tirado initially did
not slow down. Tirado eventually stopped the vehicle, exited, and ran
through lanes of oncoming traffic. Officer Smith instructed Tirado to
approach the center divider, and he ultimately complied.
As Tirado approached Officer Smith, Tirado “appeared very scared or
terrified of [Officer Smith].” During the interaction with Tirado, Officer
Smith witnessed multiple, objective signs of possible drug impairment.
Officer Smith placed Tirado under arrest. Officer Smith placed Tirado
in the right rear seat of a cageless patrol vehicle,2 and another officer, Officer
Huoth, sat in the left rear seat next to Tirado. Officer Smith sat in the
driver’s seat. The officers used a restraining strap to keep Tirado’s handcuffs
towards the door and utilized a standard seatbelt. The officers did not
restrain Tirado’s legs.3
2 A cageless patrol vehicle contains no partition between the officers in
the front of the vehicle and the subjects in the rear of the vehicle.
3 Officer Smith testified that officers do not utilize leg restraints unless a
detainee exhibits “extreme combative behavior.”
3
As Officer Smith drove back to the police station, he experienced “what
felt like a kick” to the back of his head. Officer Smith testified that the strike
“felt like a bottom of a shoe.” Once he felt the strike, he turned around and
observed Officer Huoth “pulling [Tirado’s] legs down and back to the
floorboard.”
During this incident, Officer Huoth witnessed Tirado kick diagonally
toward the headrest of the driver’s seat of the vehicle. He witnessed Tirado’s
leg or foot connect with part of the seat and saw Officer Smith “lurch[ ]
forward . . . quite a bit towards the steering wheel.” He saw Tirado kick
about three times but did not see Tirado connect with the seat or Officer
Smith more than once. Officer Huoth then, “used [his] hands and arms to
push down . . . Tirado’s legs back toward his seat.” Officer Huoth did not see
Tirado’s feet directly connect with the back of Officer Smith’s head. Officer
Huoth testified that the entire incident lasted a second or two.
After the incident, Officer Smith continued to drive back to the police
station. Officer Smith said the kick “hurt.” He continued to have dull head
pain until that afternoon. Later, he felt nauseous and vomited several times.
He went to the hospital, and a doctor diagnosed him with a mild concussion.
The doctor recommended limited duty, but Officer Smith returned to work
the next day. Officer Smith did not feel any pain or symptoms the next day
or any of the days following the incident.
The People filed an amended information charging Tirado with assault
on a peace officer by means likely to produce great bodily injury (§ 245,
subd. (c); count 1) with a special allegation that he personally inflicted great
bodily injury upon the officer (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8));
battery on a peace officer with injury (§ 243, subd. (c)(2); count 2) with a
special allegation that he personally inflicted great bodily injury upon the
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officer (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); and driving under the
influence of a drug (Veh. Code, § 23152, subd. (f); count 3).
Tirado pled not guilty and denied all allegations.
The jury found Tirado guilty on all three counts but found not true the
allegations that he personally inflicted great bodily injury in the commission
of counts 1 and 2.
The probation report listed the following possible circumstances in
aggravation: Tirado’s engagement in violent conduct indicated a serious
danger to society (Cal. Rules of Court, rule 4.421(b)(1)), his prior convictions
as an adult continued to be serious (id. at rule 4.421(b)(2)), his prior prison
terms (id. at rule 4.421(b)(3)), and his unsatisfactory past performance on
probation/parole (id. at rule 4.421(b)(5)).
The court imposed the upper term of five years on count 1. It also
imposed the upper term of three years on count 2 to run concurrently, but it
stayed the sentence under section 654. Additionally, it imposed a 180-day
consecutive term on count 3.
At sentencing, the court said the following:
“The Court feels it is important that this case is arising in
the context of the defendant having prior drug convictions
and including some significant custody time. It did not
prevent the defendant from seriously endangering many
lives in the manner in which he drove in this case, and it is
totally fortuitous that this is not a, you know, voluntary
manslaughter case or something involving, you know, a
tragedy on the freeway.
“All of that goes to the issue of the seriousness of the
defendant’s conduct after the freeway danger was over, and
his decision to attack an officer and to cause a concussion to
occur, not a great bodily injury, but this is not just
somebody who, you know, shoved an officer aside as they
were trying to run away.
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“So the Court believes that the assessment of the probation
department as to the felony charges is a correct assessment
as to the seriousness of the defendant’s record and conduct,
and that the factors supporting a—an imposition of the
upper term outweigh those that would support a mid to—or
lower term.”
Tirado filed a timely notice of appeal.
III
DISCUSSION
A. Sufficient Evidence Supports Tirado’s Conviction
Under a substantial evidence standard of review, “[w]e ‘review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence–that is, evidence which is
reasonable, credible, and of solid value–such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Nelson (2016) 1 Cal.5th 513, 550, quoting People v. Johnson (1980) 26 Cal.3d
557, 578.) “We presume in support of the judgment the existence of every
fact the jury reasonably could deduce from the evidence [citation]. If the
circumstances reasonably justify the findings made by the trier of fact,
reversal of the judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.” (People v.
Jennings (2010) 50 Cal.4th 616, 638-639.)
Under section 245, “[a]ny person who commits an assault with a deadly
weapon or instrument, other than a firearm, or by any means likely to
produce great bodily injury upon the person of a peace officer or firefighter,
and who knows or reasonably should know that the victim is a peace officer
or firefighter engaged in the performance of his or her duties, when the peace
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officer or firefighter is engaged in the performance of his or her duties, shall
be punished by imprisonment in the state prison for three, four, or five
years.” (Id., subd. (c).)
“What force is likely to produce great bodily injury is a question of fact
to be determined by the jury.” (People v. Pierre (1960) 178 Cal.App.2d 585,
590-591.) Additionally, while “the results of an assault are often highly
probative of the amount of force used, they cannot be conclusive.” (People v.
Muir (1966) 244 Cal.App.2d 598, 604.) “[I]t is immaterial whether the force
actually results in any injury. The focus is on force likely to produce great
bodily injury.” (People v. Parrish (1985) 170 Cal.App.3d 336, 343.) “Great
bodily injury is bodily injury which is significant or substantial, not
insignificant, trivial, or moderate.”4 (People v. McDaniel (2008) 159
Cal.App.4th 736, 748 (McDaniel).) Therefore, the prosecution need only
prove that a defendant’s act was likely to produce a great bodily injury.
Here, the jury found Tirado guilty of assault on a peace officer by
means likely to produce great bodily injury. He asserts that substantial
evidence does not support his assault conviction because he was well
restrained, the incident was brief, and the jury found not true the allegation
that he personally inflicted great bodily injury.
Officer Huoth witnessed Tirado kick multiple times toward the
headrest, observed Tirado’s leg or foot connect with part of the seat, and then
saw Officer Smith “lurch[] forward . . . quite a bit towards the steering
wheel.” Meanwhile, Officer Smith experienced “what felt like a kick” to the
back of his head while driving. Tirado’s kick directed at Officer Smith’s head
4 The use of hands and feet can be considered force capable of producing
great bodily injury under section 245. (People v. Aguilar (1997) 16 Cal.4th
1023, 1028.)
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causing Officer Smith to “lurch[] forward . . . quite a bit” demonstrates that
Tirado’s actions were likely to cause injury. Furthermore, Tirado’s acts were
likely to produce great bodily injury because Officer Smith was in an exposed
position facing away from Tirado with no means of protecting himself from
the strike. Additionally, Officer Smith “felt like a bottom of a shoe” struck his
head, a place on the body that is particularly likely to suffer a “significant or
substantial” kind of injury. (McDaniel, supra, 159 Cal.App.4th at p. 748.)
Thus, focusing on “the force actually used” during the assault, as urged by
Tirado, we are satisfied that the jury could reasonably determine Tirado’s
kicking was likely to produce great bodily injury. (People v. Duke (1985) 174
Cal.App.3d 296, 303 [finding evidence of a brief headlock insufficient to
support a conviction for assault with force likely to produce great bodily
injury].)
Furthermore, while it is not required for an assault by means likely to
produce great bodily injury to actually result in an injury, an injury occurred
here. Indeed, the kick “hurt,” and Officer Smith felt dull pain throughout the
day of the incident. He felt nauseous, vomited several times, and went to the
hospital, where a doctor diagnosed him with a mild concussion. The fact that
Tirado was well restrained, the incident was brief, and the jury found not
true the special allegation that he actually inflicted great bodily injury does
not refute the jury’s reasonable conclusion that the kick was likely to produce
great bodily injury.
Therefore, assuming every fact in support of the judgment, the record
demonstrates substantial evidence to support Tirado’s assault conviction.
B. Senate Bill 567
Prior to Senate Bill 567, section 1170 gave the trial court wide
discretion in weighing aggravating and mitigating circumstances in the
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imposition of a lower, middle, and upper term sentence. (See § 1170, former
subd. (b).) In 2021, the Governor approved Senate Bill 567, which amended
section 1170. These amendments limited the trial court’s broad discretion in
sentencing and introduced a statutory presumption for a middle term
sentence. (§ 1170, subds. (b)(1) & (b)(2).) Under the amended version of
section 1170, a trial court may only exceed the imposition of a middle term
sentence, “when there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (Id., subd. (b)(2).) The statute provides
one exception: “[T]he court may consider the defendant’s prior convictions in
determining sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.” (Id., subd. (b)(3).)
Several appellate courts have recently considered the implications of
Senate Bill 567, and the issue has divided California Courts of Appeal. In
People v. Flores (2022) 75 Cal.App.5th 495, 497 (Flores), the court assessed
whether, in light of Senate Bill 567, the court must remand for resentencing.
There, the court noted several aggravating factors and imposed the upper
term for a corporal injury offense under the former version of section 1170.
(Flores, at p. 499.)
The First District held that remand was unnecessary because any error
was harmless: when “ ‘a reviewing court concludes, beyond a reasonable
doubt, that the jury, applying the beyond-a-reasonable-doubt standard,
unquestionably would have found true at least a single aggravating
circumstance had it been submitted to the jury,’ the error is harmless.”
(Flores, supra, 75 Cal.App.5th at p. 500, quoting People v. Sandoval (2007) 41
9
Cal.4th 825, 839.) The appellate court concluded beyond a reasonable doubt
that the jury would have found true at least one aggravating circumstance
the trial court noted at sentencing. (Flores, at p. 501.)
A panel of this court reached a different conclusion in People v. Lopez
(2022) 78 Cal.App.5th 459 (Lopez). There, the trial court sentenced the
defendant under its sentencing discretion consistent with the pre-amendment
version of section 1170, by imposing an upper term sentence on one count
based on several aggravating factors. (Lopez, at p. 464.) On appeal, the
defendant asked this court to remand for resentencing in light of the changes
to section 1170. (Lopez, at p. 461.)
On review, we considered the argument in Flores but disagreed that a
finding by a reviewing court that the jury would have found true beyond a
reasonable doubt at least one aggravating circumstance was sufficient to
affirm without remand. (Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.)
Instead, we explained:
“[T]he initial relevant question for purposes of determining
whether prejudice resulted from failure to apply the new
version of the sentencing law is whether the reviewing
court can conclude beyond a reasonable doubt that a jury
would have found true beyond a reasonable doubt all of the
aggravating factors on which the trial court relied in
exercising its discretion to select the upper term. If the
answer to this question is ‘yes,’ then the defendant has not
suffered prejudice from the court’s reliance on factors not
found true by a jury in selecting the upper term. However,
if the answer to the question is ‘no,’ we then consider the
second question, which is whether a reviewing court can be
certain, to the degree required by People v. Watson (1956)
46 Cal.2d 818, 836, that the trial court would nevertheless
have exercised its discretion to select the upper term if it
had recognized that it could permissibly rely on only a
single one of the aggravating factors, a few of the
aggravating factors, or none of the aggravating factors,
10
rather than all of the factors on which it previously relied.
If the answer to both of these questions is ‘no,’ then it is
clear that remand to the trial court for resentencing is
necessary.” (Ibid.)
In Lopez, because the prosecution did not need to present evidence
directly related to the aggravating factors at trial under the former version of
section 1170, it was “entirely speculative” to presume “what a jury would
have found true in connection with these factors.” (Lopez, supra, 78
Cal.App.5th at p. 466.) Additionally, we concluded that the record did not
clearly indicate “that [the trial court] would have selected an upper term
sentence even if only a single aggravating factor or some subset of
permissible factors were present.” (Id. at p. 468.) Therefore, we remanded
the matter for resentencing. (Ibid.; see People v. Wandrey (2022) 80
Cal.App.5th 962, 982-984 [finding remand for resentencing necessary under
the reasoning in Lopez]; see also People v. Zabelle (2022) 80 Cal.App.5th
1098, 1113 [Third Dist.] [finding remand for resentencing necessary but
concluding that “a reviewing court must always evaluate for Watson error
before concluding that the trial court’s error was harmless”].)
C. Analysis
The parties agree that the changes to section 1170 apply retroactively
to Tirado under In re Estrada (1965) 63 Cal.2d 740. We agree. Accordingly,
Tirado is eligible to request resentencing relief.
Consistent with our view in Lopez, on the record before us, we cannot
conclude beyond a reasonable doubt that the jury would have found true “all
of the aggravating factors” the court relied on when sentencing Tirado.
(Lopez, supra, 78 Cal.App.5th at p. 467, fn. 11.) We find it “entirely
speculative” to assume that even if the prosecutor presented the aggravating
circumstances that the trial court relied in sentencing to the jury that the
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jury would have found true beyond a reasonable doubt at least one, let alone
all, of the aggravating circumstances necessary to find harmless error in this
case. (Id. at p. 466.)
Additionally, we do not find that “the trial court would nevertheless
have exercised its discretion to select the upper term if it had recognized that
it could permissibly rely on only a single one of the aggravating factors, a few
of the aggravating factors, or none of the aggravating factors, rather than all
of the factors on which it previously relied.” (Lopez, supra, 78 Cal.App.5th at
p. 467, fn. 11.) Here, as in Lopez, the court identified several aggravating
factors in selecting the upper term at sentencing. (See Id. at p. 464.) The
court orally discussed Tirado’s prior convictions (Cal. Rules of Court,
rule 4.421(b)(3)), the seriousness of his conduct (id. at rule 4.421(b)(1)) and
the severity of his record (id. at rule 4.421(b)(2)). It also stated that it
believed the probation department’s assessment, which identified a fourth
aggravating factor, Tirado’s unsatisfactory past performance on
probation/parole (id. at rule 4.421(b)(5)), was accurate. Consequently, the
record does not clearly indicate that the trial court would have selected the
upper term based on a single aggravating factor or subset of aggravating
factors discussed at sentencing.
The People, relying on Flores, argue that the trial court’s reliance on
one permissible factor under Senate Bill 567, Tirado’s criminal history,
makes any error harmless. However, we disagree with the People’s
argument, as we did in Lopez, because although the trial court emphasized
Tirado’s criminal history at sentencing, it was not the only factor the court
discussed. (Lopez, supra, 78 Cal.App.5th at pp. 466-468.) Therefore, the
record does not sufficiently demonstrate that his criminal history alone was a
determinative, sentencing factor.
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The People separately suggest that should we remand the matter, the
district attorney should be “given the election of proceeding under the new
version of section 1170, subdivision (b), or accepting resentencing,”
suggesting the district attorney should have the option of proving facts to
support aggravating sentencing factors beyond a reasonable doubt. Although
we remand the matter for resentencing consistent with Senate Bill 567, we
express no opinion as to the approach the trial court takes on remand.
DISPOSITION
We remand the matter. The superior court shall resentence Tirado in
accordance with the amended version of section 1170, subdivision (b). We
further direct the superior court to prepare an amended abstract of judgment
and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O’ROURKE, J.
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