Opinion
F073684
05-10-2018
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO VILLA GOMEZ ALMANZA, Defendant and Appellant.
Caitlin Urie Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CR-01844)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Caitlin Urie Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J. and Ellison, J.†
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INTRODUCTION
Appellant Eduardo Villa Gomez Almanza (Almanza) contends he received ineffective assistance of counsel because trial counsel failed to object to the trial court's dual use of facts to both enhance his sentence and impose the aggravated term of imprisonment for his Penal Code section 245, subdivision (a)(1) conviction. We affirm.
References to code sections are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
On April 17, 2015, Debbie Simmons, the manager of a Taco Bell in Los Banos, called 911 when she was told a person outside was bleeding and needed assistance. Simmons walked out to the Rail Trail homeless encampment with the person who reported the incident to her and located a man, Dustin Flint, who was bleeding. Simmons looked around and saw a man nearby who was standing over a sleeping man, Anthony Jordan, and hitting Jordan with what looked like a length of pipe. Simmons yelled at the man to stop. The man turned around and looked at her, then "took off walking."
Later that day, Simmons identified Almanza for the police as the man who had been wielding the length of pipe and hitting Jordan. Simmons also identified Almanza at trial as the man wielding the pipe.
The first victim, Flint, was homeless in April 2015 and spending a great deal of time at the Rail Trail encampment. The afternoon of April 17, 2015, he was napping when "all of a sudden I woke up to somebody beating me over the head with a big old piece of metal." Flint's head was bleeding when he awoke and he tried to defend himself from the blows. Flint identified Almanza as his attacker.
Flint was bleeding profusely and eventually flown to a hospital in Modesto, where he spent eight days in critical care. There were fractures to his arms, legs, and ribs. Staples, stitches, and "plastic braces" were used to help repair the damage. At the time of trial in April 2016, Flint still was suffering from continued medical problems, including seizures, resulting from the attack.
Flint had seen Almanza at the homeless encampment once before burning the blankets belonging to the homeless and lighting the garbage cans on fire. Flint and others asked Almanza to stop burning their belongings and to leave the encampment.
The second victim, Jordan, had a laceration to the back of his head. Jordan had difficulty talking and moving his face when trying to speak with a police officer who arrived at the encampment in response to the incident.
A police officer located Almanza just outside the Rail Trail encampment; he had blood on his hands and shirt and a length of metal pipe tied to his backpack. The pipe appeared to have blood on it. Almanza had no apparent injuries.
On April 8, 2016, a jury found Almanza guilty of two counts of assault with a deadly weapon, in violation of section 245, subdivision (a)(1). The jury also found true the allegation appended to each count that Almanza inflicted great bodily injury in violation of section 12022.7, subdivision (a).
The probation report noted that as of the date of the report, Almanza was twenty-six years old. He had amassed a significant prior criminal record for numerous offenses committed as a juvenile and an adult. In assessing the circumstances in aggravation and mitigation of the current offenses, the probation officer found no mitigating circumstances. The probation officer identified seven aggravating circumstances pursuant to California Rules of Court, rule 4.421: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness (rule 4.421(a)(1)); (2) Almanza was armed with or used a weapon at the time of the commission of the crime (rule 4.421(a)(2)); (3) the victim was particularly vulnerable (rule 4.421(a)(3)); (4) the manner in which the crime was carried out indicates planning, sophistication or professionalism (rule 4.421(a)(8)); (5) Almanza has engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); (6) Almanza's prior convictions as an adult or sustained petitions in juvenile delinquency are numerous or of increasing seriousness (rule 4.421(b)(2)); and (7) Almanza's prior performance on probation or parole was unsatisfactory (rule 4.421(b)(5)).
References to rules are to the California Rules of Court. --------
The probation officer recommended probation be denied and Almanza be sentenced to a term of imprisonment in state prison.
Almanza was sentenced on May 5, 2016. Before pronouncing sentence, the trial court reviewed the court file, the probation report, and a statement from Almanza. The trial court found Almanza was not eligible for probation, the interests of justice would not be served by a grant of probation, and Almanza's criminal history indicated he was not "amenable to probation supervision."
The trial court calculated the "maximum possible sentence" it could impose as nine years in prison. The trial court indicated it intended to impose the "upper term" for the count one offense. In selecting the aggravated term, the trial court stated:
"But the Court in hearing the testimony of Mr. Flint and in seeing the photographs and the injury you inflicted upon him and Mr. Jordan, the Court's tentative intended ruling is for Count 1, which will be the principal term, a violation of [section] 245(a)(1), to commit you to the State of California Department of Corrections for the upper term of 4 years.
The reason the Court is intending to impose that four-year sentence is because [of] your conduct in this case as described in the testimony. Not only by Mr. Flint, but also by the manager of Taco Bell and the aftermath of what havoc and viciousness in what you did indicates to this Court that you're a serious danger to society and that your history of past crimes, looking at this current event, suggest to me that your crimes are increasing in seriousness.
In addition, the Court finds that the victims who undisputedly were on the ground sleeping, I think Mr. Flint called it a power nap, were particularly vulnerable when you attacked them."
The trial court went on to state that it intended to impose an additional three years, consecutive, for the great bodily injury enhancement appended to count one. With respect to count 2, the trial court intended to impose a consecutive term of one-third the midterm, or twelve months. A consecutive term of one year was the tentative sentence for the great bodily injury enhancement appended to count 2.
After stating its intended sentence, the trial court provided both parties with an opportunity to object or address the court. The People concurred with the trial court's analysis and the proposed sentence. Defense counsel argued against the sentence, asking that probation or the mitigated term be imposed. Defense counsel did not challenge any of the factors in aggravation on the basis they constituted an impermissible dual use of facts.
The trial court declined to grant probation. The trial court adopted its tentative sentence of the maximum term of nine years as the appropriate sentence "in order to protect society from" Almanza.
The abstract of judgment was filed May 10, 2016 and accurately reflects the trial court's oral pronouncement of judgment. Almanza filed a notice of appeal on May 6, 2016.
DISCUSSION
Almanza's sole contention on appeal is that he was deprived of the effective assistance of counsel because counsel failed to object when the trial court relied on the victims' injuries to impose both a great bodily injury enhancement and the aggravated term of imprisonment, which he contends is an impermissible dual use of facts.
We disagree with Almanza's contention that the trial court impermissibly made dual use of facts. Alternatively, if the trial court considered the victims' injuries as one factor in aggravation, other valid factors support the aggravated term. Therefore, Almanza was not prejudiced.
Analysis
Preliminarily, we note that Almanza concedes he did not object in the trial court and assert an impermissible dual use of facts. "The failure to state reasons or the use of improper circumstances for a sentencing decision is not a jurisdictional error. (People v. Scott (1994) 9 Cal.4th 331, 355 [the defendant's claim that reasons used for sentencing were 'inapplicable, duplicative, and improperly weighed' was waived]; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [improper dual use of facts underlying weapons use to impose the upper term waived by failure to impose a more specific objection at sentencing]; . . . People v. Erdelen (1996) 46 Cal.App.4th 86, 91 [improper dual use of facts to impose upper term waived] . . . ." (People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042.)
Almanza asserts this issue in the context of ineffective assistance of counsel, contending counsel's failure to object to a dual use of facts to impose the aggravated term deprived him of the effective assistance of counsel. We conclude counsel did not render ineffective assistance.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To establish ineffective assistance of counsel, " 'a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant . . . .' " (People v. Lewis (2001) 25 Cal.4th 610, 674.)
We do not view the trial court's comments at sentencing as relying on "the nature and extent of the victims' injuries" to impose the aggravated term. The trial court stated it was imposing the aggravated term "because [of] your conduct in this case as described in the testimony." The trial court opined that the "havoc and viciousness in what you did indicates to this Court that you're a serious danger to society and that your history of past crimes, looking at this current event, suggest to me that your crimes are increasing in seriousness." The trial court also found the victims were particularly vulnerable at the time Almanza attacked them because they were asleep. Later, the trial court stated "the probations that were unsuccessful" were another reason for imposition of the aggravated term.
The trial court articulated four appropriate factors as reasons for imposing an aggravated term: (1) the victims were particularly vulnerable (rule 4.421(a)(3)); (2) Almanza's conduct indicated he was a serious danger to society (rule 4.421(b)(1)); (3) Almanza's crimes were increasing in seriousness (rule 4.421(b)(2)); and (4) Almanza's prior performance on probation was unsatisfactory (rule 4.421(b)(5)). None of these four factors constitutes an impermissible dual use of facts; therefore, counsel had no basis for raising a dual use of facts objection and was not required to make baseless objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
Furthermore, even assuming for the sake of argument that the trial court impermissibly considered the nature and extent of the victims' injuries in imposing an aggravated term as Almanza contends, the trial court articulated four other valid factors as reasons for imposing the aggravated term. Almanza did not challenge the other aggravating factors in this appeal. A single factor in aggravation is sufficient to support imposition of the aggravated term. (People v. Black (2007) 41 Cal.4th 799, 815.) Consequently, Almanza has failed to demonstrate the outcome at sentencing would have been different absent his claim of impermissible dual use of facts. Thus, there is no prejudice and Almanza has not shown counsel rendered ineffective assistance. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
DISPOSITION
The judgment is affirmed.
† Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.