People v. Barraza CA2/7

Filed 3/9/21 P. v. Barraza CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303268
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA019275)
v.
JOSE ANGEL BARRAZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
Janet Gusdorff, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Rama R.
Maline, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Jose Angel Barraza of voluntary
manslaughter and found true the allegation he personally used a
firearm within the meaning of Penal Code former section
12022.5, subdivision (a).1 The trial court sentenced Barraza to
the upper term of 11 years, plus the upper term of five years for
the firearm enhancement. Barraza appealed, arguing, among
other things, the trial court committed evidentiary error and
violated the prohibition in section 1170, subdivision (b), against
the “dual use” of aggravating facts to impose the upper term and
an enhancement. We affirmed his conviction, and without
deciding the dual use issue, directed the trial court to exercise its
discretion under section 12022.5 whether to strike the firearm
enhancement, observing that the dual use issue would become
moot if the court struck the enhancement. On remand the trial
court declined to strike the enhancement.
Barraza appeals again, arguing the trial court improperly
relied on the same aggravating facts to impose the upper term for
manslaughter and to impose the firearm enhancement. Because
Barraza did not object to the trial court’s discretionary sentencing
choices, however, he forfeited his argument. Therefore, we
affirm.
1 Statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Barraza, and the Trial Court
Considers Mitigating and Aggravating Facts Before
Sentencing Him
In 1993 Barraza shot and killed Roberto Delgado at a
party. Barraza fled to Mexico and was detained 22 years later
while crossing the border into the United States. The People
charged Barraza with murder and alleged he personally used a
firearm within the meaning of former section 12022.5,
subdivision (a). A jury found Barraza guilty of the lesser
included offense of voluntary manslaughter and found true the
allegation he used a firearm.
Before sentencing Barraza, the trial court found there were
no mitigating factors. The court found, however, there were
several aggravating factors: Barraza “brought a gun to a party,”
“shot [Delgado] at close range,” and “fled.” The court also stated
the crime “involved some planning because [Barraza] brought a
gun,” “had to arm himself” with a gun, and “had to use” the gun.
Finding there was no “real justification . . . for anything other
than [upper] term,” the trial court sentenced Barraza to the
upper term of 11 years.
Regarding the firearm use allegation, the trial court
selected the upper term of five years and stated “the same factors
in aggravation apply.” The court stated that it was aware it
could not use the same aggravating facts “repeatedly,” but that
“there are many” aggravating factors and that “the fact that the
firearm was used at close range for no apparent reason . . .
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justifies [the upper term] for that also.” The trial court sentenced
Barraza to an aggregate prison term of 16 years.2
B. Barraza Appealed, and This Court Remanded To
Allow the Trial Court To Exercise Its Discretion
Whether To Strike the Enhancement
Barraza appealed. Among various challenges to his
conviction and sentence, he argued the trial court violated section
1170, subdivision (b), by using the same facts to impose the
firearm enhancement and to impose the upper term on his
conviction for voluntary manslaughter and that the trial court
should have an opportunity to exercise its newly authorized
discretion under section 12022.5 to strike the firearm
enhancement.
Because we remanded for the trial court to exercise its
discretion whether to strike the firearm enhancement, we did not
reach the issue of whether the trial court improperly used the
same fact to impose the upper term and the enhancement.
Nevertheless, we observed that several of the facts the trial court
relied on to impose the upper term involved firearm use and that
one factor the court mentioned that did not—fleeing the
jurisdiction—“is not generally an aggravating circumstance”
under the California Rules of Court. We also stated that another
2 At the time Barraza committed his crime in 1993, section
12022.5, subdivision (a), provided for a firearm use enhancement
of three, four, or five years. In 1994 the Legislature amended the
statute to increase the upper term to 10 years. (People v. Hall
(1994) 8 Cal. 4th 950, 954-955, fn. 3; see Stats. 1989, ch. 18, § 3,
ch. 19, § 2, ch. 1044, § 5 & ch. 1167, § 5; Stats. 1993-1994,
1st Ex. Sess., ch. 31, § 3, p. 8650 & ch. 33, § 6, p. 8677.)
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aggravating factor the trial court mentioned—the crime “involved
some planning”—could justify imposing the upper term and the
firearm enhancement without violating section 1170,
subdivision (b), but that the fact the trial court identified as
indicating planning—Barraza “brought and used a gun”— again
involved firearm use and came “pretty close to the dual use line.”
(Barraza I, supra, B283526.) We suggested: “If the court does
not strike the firearm enhancement, the court will have an
opportunity to clarify the reasons for its sentencing choices.”
(People v. Barraza (Mar. 18, 2019, B283526) [nonpub. opn.]
(Barraza I).)
C. The Trial Court Declines To Strike the Firearm Use
Enhancement and Imposes the Same Sentence
No one took the suggestion. At the resentencing hearing,
the trial court declined to strike the firearm enhancement,
stating: “I believe that at the [original sentencing hearing] I did
find circumstances in aggravation. The statute requires personal
use. But I also think that Mr. Barraza, in my opinion,
unnecessarily armed himself to go to this event. And I believed
that, and the fact that he then fled the jurisdiction for another
country, posed circumstances in aggravation. And I stand by
that belief. I’m going to leave the sentence as it was previously
imposed.” Counsel for Barraza did not ask the trial court to
clarify the reasons for the court’s sentencing choices or otherwise
object the court used the same fact to impose the upper term for
the manslaughter conviction and the firearm enhancement.
Counsel for Barraza, however, did ask the court to
recalculate Barraza’s custody credits. The court stated Barraza
would need to “bring that up” with the Department of Corrections
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and Rehabilitation. Counsel urged the court “to address” the
issue of Barraza’s custody credits, but the court again declined to
do so and stated it did not have jurisdiction to review an
administrative decision. The court also stated that, should the
Department deny Barraza’s request for additional custody
credits, he “would have other remedies available to him.”
Barraza appealed again.
DISCUSSION
Barraza argues the trial court erred in relying on the same
fact in imposing the upper term on his voluntary manslaughter
conviction and imposing the firearm enhancement under former
section 12022.5. The People contend Barraza forfeited this
argument by failing to object. The law and the record support the
People.
A. Applicable Law
As we explained in Barraza I, section 1170 prohibits a court
from using the same fact to impose both the upper term on a
conviction and an enhancement on that conviction. But a court
may use the same fact to impose the upper term on a conviction
and the upper term on an enhancement. And only a single
aggravating factor is necessary to make it lawful for the trial
court to impose the upper term. (Barraza I, supra, B283526; see
People v. Chism (2014) 58 Cal. 4th 1266, 1336; People v. Scott
(1994) 9 Cal. 4th 331, 350; People v. Nicolas (2017) 8 Cal. App. 5th
1165, 1182.)
As a general rule, a defendant who fails to object “to a
purportedly erroneous ruling forfeits the right to challenge that
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ruling on appeal.” (People v. Anderson (2020) 9 Cal. 5th 946, 961;
see People v. Trujillo (2015) 60 Cal. 4th 850, 856 [“‘the forfeiture
rule applies in the context of sentencing as in other areas of
criminal law’”].) “‘[C]laims involving the trial court’s failure to
properly make or articulate its discretionary sentencing choices’
are subject to forfeiture, including ‘cases . . . in which the court
purportedly erred because it double-counted a particular
sentencing factor, misweighed the various factors, or failed to
state any reasons or to give a sufficient number of valid reasons.’”
(People v. Boyce (2014) 59 Cal. 4th 672, 730-731; see Trujillo, at
p. 856 [“claims of error in the trial court’s exercise of its
sentencing discretion are . . . forfeited if not raised at the
sentencing hearing”]; People v. Scott, supra, 9 Cal.4th at p. 353
[forfeiture “should apply to claims involving the trial court’s
failure to properly make or articulate its discretionary sentencing
choices”].)
“‘The reason for [the forfeiture] rule is that “[i]t is both
unfair and inefficient to permit a claim of error on appeal that, if
timely brought to the attention of the trial court, could have been
easily corrected or avoided.”’” (People v. Sperling (2017)
12 Cal. App. 5th 1094, 1101; see People v. French (2008) 43 Cal. 4th
36, 46.) Although reviewing courts may excuse “‘“parties for
failing to raise an issue at trial where an objection would have
been futile”’” (People v. Perez (2020) 9 Cal. 5th 1, 7-8; accord,
People v. Montes (2021) 59 Cal. App. 5th 1107, 1119), the futility
exception to the forfeiture rule generally applies in “extreme
case[s]” and “unusual circumstances” (People v. Riel (2000)
22 Cal. 4th 1153, 1212, italics omitted; accord, People v. Wilson
(2005) 36 Cal. 4th 309, 337, fn. 6; see People v. Lima (2020)
49 Cal. App. 5th 523, 534 [futility exception to forfeiture “applies
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in ‘unusual’ or ‘extreme’ circumstances”], review granted on
another issue Aug. 19, 2020, S263048).
B. Barraza Forfeited His Argument the Trial Court
Erred by Relying on the Same Fact To Impose
the Upper Term and the Enhancement
Barraza concedes he did not object that the trial court used
the same fact to impose the upper term for his conviction for
voluntary manslaughter and to impose the firearm enhancement.
He argues, however, his forfeiture is excused because it would
have been futile for him to object on that ground. Barraza argues
that “any objection would have been futile because the entire
basis for the resentencing hearing was this Court’s prior decision
in this case, detailing the potential dual use problem, and calling
to the court’s attention the inherent flaws in the aggravating
factors on which it initially relied” and that, “if the trial judge did
not heed the warning from this Court, a further objection by
defense counsel would have been even less persuasive.”
Not exactly. In Barraza I we directed the trial court to
exercise sentencing discretion it did not previously have under
section 12022.5. As Barraza recognizes, “[d]espite identifying the
potential error, this Court remanded for resentencing on a
different issue, recognizing the ‘dual use’ issue would become
moot if the trial judge struck” the enhancement. That our
opinion suggested the trial court could clarify its reasons for its
sentencing choices did not relieve Barraza from having to object
in order to preserve his argument for this appeal. (See People v.
Trujillo, supra, 60 Cal.4th at p. 858 [defendant has the burden at
sentencing to object that the trial court did not comply with the
statutory requirements for imposing the costs of probation “as a
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prerequisite to challenging” those costs on appeal]; People v.
Sperling, supra, 12 Cal.App.5th at p. 1101 [“a defendant cannot
remain mute while the trial court states its reasons for imposing
a sentence and then on appeal claim that its statement of reasons
was defective”]; People v. Velasquez (2007) 152 Cal. App. 4th 1503,
1511 [by failing to object, the defendant forfeited his argument
the trial court erred in failing to state its reasons for imposing
the upper term on a conviction for assault with a firearm and a
firearm enhancement].)
Moreover, the circumstances of the resentencing hearing
here were the opposite of futility: Our opinion in Barraza I
included an invitation for Barraza to challenge, and the trial
court to revisit, the portion of his sentence he contended violated
section 1170, subdivision (b). And counsel for Barraza recognized
it was not futile to argue the court should consider aspects of
Barraza’s sentence other than the firearm enhancement by
raising, and obtaining a ruling on, the issue of Barraza’s custody
credits. (See People v. Boyce, supra, 59 Cal.4th at p. 731
[forfeiture rule applies when the sentencing court provides “a
meaningful opportunity to object”]; People v. Velasquez, supra,
152 Cal.App.4th at p. 1511 [defendant forfeited the argument the
trial court erred in imposing an upper term where counsel did not
object, even though “counsel was well aware of the court’s
sentencing choices and had a meaningful opportunity to
object”].)3
3 Barraza does not argue his trial counsel provided
ineffective assistance in failing to object at resentencing.
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C. Discretionary Review Is Not Warranted
Finally, Barraza argues that, even if he forfeited his
argument under section 1170, subdivision (b), this court should
exercise discretion to reach the issue. “It is well settled that an
appellate court may decide an otherwise forfeited claim where
the trial court has made an error affecting ‘an important issue of
constitutional law or a substantial right.’” (People v. Anderson,
supra, 9 Cal.5th at p. 963; accord, People v. Delavega (2021)
59 Cal. App. 5th 1074, 1086.)
Exercising such discretion is not appropriate here. We
identified the dual use issue in our opinion in Barraza I, Barraza
had the opportunity to raise the issue with the trial court,
Barraza did not object at the sentencing hearing, and the trial
court did not impose an unauthorized sentence. (See People v.
Trujillo, supra, 60 Cal.4th at p. 858 [“‘[a]lthough the court is
required to impose sentence in a lawful manner, counsel is
charged with understanding, advocating, and clarifying
permissible sentencing choices at the hearing’”]; In re S.B. (2004)
32 Cal. 4th 1287, 1293 [an “appellate court’s discretion to excuse
forfeiture should be exercised rarely and only in cases presenting
an important legal issue”].) Barraza’s assertion the trial court
may have used the same fact to impose the upper term on his
conviction and the firearm enhancement raises an issue of trial
court discretion based on facts unique to his case, not an
important issue of constitutional or statutory law. Contrary to
Barraza’s suggestion, the issue is not “one of law,” where there
was “nothing that [he] or the trial court could have or would have
done differently had the objection been made,” but one of
discretion. (See People v. Clancey (2013) 56 Cal. 4th 562, 579
[“[w]ithin the limits set forth by the Legislature, a trial court has
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broad discretion to decide whether . . . to select the upper, middle,
or lower term of imprisonment”].)
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
MCCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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