Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA292935, Rand S. Rubin, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Samael Gomez repeatedly stabbed his ex-girlfriend when she walked out of a beauty parlor. He was convicted of attempted premeditated murder (count 1), aggravated mayhem (count 2), and related enhancements. He contends: (1) The trial court should not have given a jury instruction on lay opinion. (2) Count 2 should have been stayed pursuant to Penal Code section 654. (3) The trial court erroneously believed he was ineligible for probation. (4) Selection of the upper term for a great bodily injury (GBI) enhancement on count 1 violated his right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
Subsequent code references are to the Penal Code unless otherwise stated.
For the fourth issue, both sides have submitted supplemental briefing, at our request, on the application to this case of People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We also asked for briefing on whether the jury’s finding of premeditation, which was made to increase the punishment for attempted murder, could be used as a circumstance in aggravation for the upper term, without violating the prohibition against dual use of facts.
We find no error and affirm.
FACTS
Appellant and Monica met in May 2004. On an unspecified date, they began living together as boyfriend and girlfriend. They broke up in May 2005, after appellant falsely accused Monica of infidelity, hit her, pinned her down on a couch, and choked her. He moved out of the apartment, but they still sometimes talked on the telephone and went out to eat together. He continued to be irrationally jealous and angry. She changed her home telephone number and told him she did not want to see him any more. They did not communicate for several weeks. Then he began to call her again on her cell phone.
On the morning of October 28, 2005, Monica told appellant, over the telephone, that she had a new boyfriend and did not want to talk to him any more. Actually, she had fabricated having a new boyfriend, so that he would leave her alone. He became angry, started to cry, and told her that she could not do that to him. He said they needed to talk and to see each other. He gave her his new cell phone number. She told him she had to go to work but would call him. She had no intention of calling him and did not do so.
About 8:15 p.m. that evening, appellant angrily approached Monica, as she walked out of a beauty parlor near her apartment. He held something in his closed fist that she could not see. She continued walking home. He walked behind her, repeatedly asking why she had not called him. She told him that she had not called because she did not want to see him. He grabbed her and pushed her between two parked cars. He said that if he could not have her, no one could have her. Those were his last words to her. Holding one arm around her, he slashed across her right cheek with a sharp-bladed object. She tried to free herself and cut herself (apparently on the hand and fingers). He then stabbed her twice, along each side of her neck, wounding her from ear to ear. Then he repeatedly stabbed her body. Even though she was wearing a heavy coat, the blade reached her many times. She struggled to defend herself and pleaded with him not to kill her. She believed he was trying to kill her. Finally he pushed her down, stabbed her twice in the back and ran away.
After appellant left, Monica got up, walked closer to her apartment, and collapsed on the sidewalk. She thought she was going to die. Her brother came outside. She told him that appellant had attacked her. An ambulance took her to the hospital. She received stitches all over her body and staples to close wounds in her breast and back. She suffered from intense pain and remained at the hospital for several days.
After Monica left the hospital, she needed multiple treatments for complications from an injured salivary gland. For six months she could eat nothing but liquids, through a straw. She was left with numbness, pain, and numerous scars on her face, neck, body, arm and hand. For example, the side of her neck hurt when she swallowed. Her cheek and right hand were painful if touched. Her left arm was weak, and she sometimes dropped objects from her left hand.
DISCUSSION
1. The Instruction on Lay Opinion
While Monica described the incident, during questioning by both counsel, she sometimes interjected her belief that appellant intended to kill her. She stated, at various points: “I felt that he wanted to kill me,” “[h]e just wanted to kill me,” “[t]he only thing he wanted was to kill me” and “at that time he was trying to kill me.” Near the end of her testimony, defense counsel asked her why she had that belief. She replied: “I said so because at the time he was stabbing me he had the intention to kill me. But I can’t guess, I don’t know what he was thinking.”
There was only one objection to Monica’s statements about her belief in appellant’s intent. The question was, “And you really don’t remember what happened because everything happened so fast; correct?” Monica answered, “Well, everything was very fast. The only thing he wanted was to kill me.” Defense counsel objected that the answer was non responsive. The trial court agreed and struck that specific statement.
Based on Monica’s testimony that she believed that appellant wanted to kill her, the trial court later asked counsel if it should give CALCRIM No. 333, on the opinion of a lay witness. Defense counsel protested that the issue was not what Monica thought but what appellant thought. The court gave the instruction, over defense objection. The instruction stated:
“Witnesses, who were not testifying as experts, gave their opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Monica’s belief did not form an important part of the final arguments of counsel. The prosecutor simply reminded the jury that Monica thought appellant was trying to kill her. However, since Monica was “not a mind reader,” as Monica herself admitted, the prosecutor told the jurors to decide the issue of intent to kill based on appellant’s words and actions.
We question the trial court’s decision to instruct on lay opinion, but we do not analyze the issue in detail because, assuming there was error, there was no prejudice. We are convinced that there was no reasonable probability of a different result if the instruction had not been given. (People v. Hinton (2006)37 Cal.4th 839, 889.) Neither counsel mentioned the instruction during final argument. It was obvious that Monica was not a mind reader, as she herself stated, and as the prosecutor pointed out to the jury during argument. The best evidence of appellant’s intent came from the nature of the stab wounds he inflicted, including, in particular, the wounds across Monica’s throat and to her chest and back. Also, appellant told her, just before stabbing her, that “[i]f [she] wasn’t going to be his, [she] was going to be nobody’s.” Those words showed that he intended to kill her so that she could not be with another man. He spoke those words on the same day she had told him (falsely) that she had a new boyfriend. Given the overwhelming evidence of intent to kill in appellant’s words and actions, there was no possible prejudice from the instruction on lay opinion.
2. The Section 654 Issue
Appellant received consecutive life sentences for attempted premeditated and deliberate murder (count 1; §§ 664, 187) and aggravated mayhem (count 2; § 205). At the sentencing hearing, the trial court did not stay the sentence on count 2 pursuant to section 654, because appellant had “a separate criminal objective” for that count. Appellant contends that ruling was erroneous. We do not agree, as the record supports the finding of two separate criminal objectives.
Section 205 states: “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.”
Section 654, subdivision (a), provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“If [a] defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
The crimes in counts 1 and 2 had different intent requirements. Premeditated attempted murder required the specific intent to kill, plus premeditation and deliberation (CALCRIM Nos. 600 & 601). Aggravated mayhem required the specific intent to permanently disable or disfigure (CALCRIM No. 800; see People v. Ferrell (1990) 218 Cal.App.3d 828, 833).
“[I]t is apparent that a defendant may intend both to kill his or her victim and to disable or disfigure that individual if the attempt to kill is unsuccessful.” (People v. Ferrell, supra, 218 Cal.App.3d at pp. 833-834.) Here, appellant stabbed Monica in a nonlethal but highly visible area, her face, before inflicting more dangerous stab wounds to her throat and body. Because the evidence showed that he intended both to disfigure her and to kill her, the trial court correctly imposed sentence on both of the counts.
3. Eligibility for Probation
A person who is convicted of willfully inflicting great bodily injury is ineligible for probation, “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation . . . .” (§ 1203, subd. (e)(3).)
At the sentencing hearing, the trial court said it had read the probation report. It then stated that appellant was “not eligible for probation,” pursuant to section 1203, subdivision (e)(3). Appellant contends that those words show the court erroneously believed he was ineligible for probation, even though his minimal criminal record justified a finding that this was an unusual case. We do not agree.
According to the probation report, appellant came to this country from El Salvador in 1995 and worked here as a security officer. He was arrested for inflicting corporal injury on a spouse or cohabitant in May 2005. The probation report gave no further information about that offense. The probation report also specifically stated that appellant was ineligible for probation under section 1203, subdivision (e)(3), unless the court found this to be an unusual case. It recommended a denial of probation, due to the violent nature of the attack and the risk that appellant posed to Monica and to society.
Thus, the trial court knew of appellant’s minimal record from the probation report, and was well aware of its discretion to place him on probation if it declared this to be an unusual case. It had heard the evidence at the trial. There was no abuse of discretion in its determination that appellant was ineligible for probation. (See People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
4. The Blakely/Cunningham Issue
A. The Record
Appellant was sentenced to a life term on count 2, aggravated mayhem (§ 205), and a consecutive life term on count 1, attempted premeditated murder (§§ 664, 187). The life sentence on count 1 arose from a jury finding that the crime was willful, deliberate and premeditated, pursuant to section 664, subdivision (a) (section 664(a)). For count 1, the trial court also imposed one year for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). We call that enhancement the weapons enhancement. It also added five years, the upper term, for personal infliction of great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). We call that enhancement the GBI enhancement.
Section 12022.7, subdivision (e) states in pertinent part: “Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”
The GBI enhancement carried a possible term of three, four or five years. The jury found the enhancement to be true. To impose the upper term, the trial court relied on the following circumstances in aggravation:
“Circumstances in aggravation are the crime involved great violence, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. [¶] 2. [sic] The defendant was armed with or used a weapon at the time of the commission of the crime. [¶] The planning, sophistication, or professionalism with which the crime was carried out or other facts do indicate premeditation. [¶] The victim was particularly vulnerable. [¶] Circumstances in mitigation are the fact that the defendant has no prior record or insignificant record of criminal conduct, considering the recency and frequency of the prior crimes. [¶] The court does find the factors in aggravation outweigh any in mitigation.”
Appellant argues that the upper term for the GBI enhancement was based on sentence-elevating fact finding, in violation of his Sixth Amendment right to jury under Cunningham, supra, 549 U.S. __ [127 S.Ct. 856], and Blakely, supra, 542 U.S. 296.
We requested supplemental briefing on Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825. We also had concerns with whether premeditation or planning behavior could be used as a basis for the upper term, when appellant’s sentence on count 1 was already increased for the fact of premeditation.
B. Blakely and Its Progeny
Blakely, supra, 542 U.S. 296 held that the statutory sentencing scheme of the State of Washington violated the defendant’s Sixth Amendment right to a jury determination of the facts that are essential to punishment, as the scheme permitted an increase in sentence based on a finding by the judge at the sentencing hearing, even though that fact had neither been admitted by the defendant nor found true by a jury. (Blakely, at pp. 298-305.) Blakely relied on this language from Apprendi v. New Jersey (2000) 530 U.S. 466: “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” (Blakely, at p. 301, quoting Apprendi, at p. 490.) It further held “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, at p. 303.)
Under Cunningham, it is the midterm of a Determinate Sentence Law (DSL) sentence in California, and not the upper term, that constitutes the statutory maximum sentence. Cunningham further held that the DSL violates a defendant’s Sixth Amendment right to a jury trial, because it gives the trial judge, and not the jury, the authority to find the facts that permit an upper term sentence. (Cunningham, 549 U.S. at p. __ [127 S.Ct. at p. 871].)
In response to Cunningham, our Legislature revised the DSL, effective March 30, 2007. The Judicial Council then amended the sentencing rules to conform to the new version of the DSL. (See Cal. Rules of Court, rules 4.405-4.452.)
A new version of the statute will be effective January 1, 2009. (Stats. 2007, ch. 3, § 3.)
The California Supreme Court provided guidance on the meaning of Cunningham in Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825.
Black II held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) The trial court had selected the upper term for the crime of continual sexual abuse of a child based on “ ‘the nature, seriousness, and circumstances of the crime,’ ” including the defendant’s use of force. (Ibid.) Black II ruled that imposition of the upper term met the requirements of Blakely and Cunningham based on these two circumstances in aggravation: (1) the defendant’s use of force, which the jury had found true, in the context of an allegation of ineligibility for probation under section 1203.066, subdivision (a)(1); and (2) the defendant’s prior criminal record. (Black II, at pp. 816-820.)
The same day it decided Black II, which affirmed an upper term sentence, the Supreme Court decided Sandoval, supra, 41 Cal.4th at pages 838 through 843, which reversed an upper term sentence due to prejudicial Blakely error. Sandoval’s analysis of prejudice is particularly important for defendants without prior criminal convictions, such as the defendant in Sandoval,and appellant in the case at bench. We are required to follow the lead of our Supreme Court on this issue. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The facts in Sandoval are somewhat unusual, as there were questions about the defendant’s exact role in the crime, due to disputes in the evidence and the jury’s guilt finding for lesser included offenses. The defendant, a woman, and her friend Romero, also a woman, were angry with the male victim, Rojas. A witness heard the defendant say that she would summon a gang to kill Rojas. The next evening, the defendant and Romero returned with a group of people. Two of the men in that group shot and killed Rojas and another man, and seriously injured a third. The defendant and Romero did not fire weapons, and denied that a shooting had been intended. The actual shooters were convicted, prior to the defendant’s trial. As to the defendant, the prosecution sought two verdicts of first degree murder and one of attempted premeditated murder. The jury returned two verdicts of voluntary manslaughter and one of attempted voluntary manslaughter.
The sentencing issue in Sandoval concerned imposition of the upper term on one of the counts of voluntary manslaughter. The trial court cited these factors in aggravation: “(1) the crime involved a great amount of violence; (2) defendant engaged in callous behavior; (3) defendant lacked any concern regarding the consequences of her actions; (4) the victims were particularly vulnerable because they were unarmed, inebriated, and ambushed from behind; (5) defendant was the ‘motivating force’ behind the crimes; and (6) defendant’s actions reflected planning and premeditation.” (Sandoval, supra, 41 Cal.4th at p. 841.)
Comparing those aggravating factors to the principles set forth in the Cunningham and Blakely decisions, Sandoval concluded: “None of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely. Defendant had no prior criminal convictions. All of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime; none were admitted by defendant or established by the jury’s verdict. We conclude, accordingly, that defendant’s Sixth Amendment rights were violated by the imposition of an upper term sentence.” (Sandoval, supra, 41 Cal.4th at pp. 837-838.)
Sandoval then went on to the issue of prejudice. It found the harmless error standard of Chapman v. California (1966) 386 U.S. 18, 24, to be the appropriate test. The critical issue is “whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, 41 Cal.4th at p. 838.) “[I]f 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 Sixth Amendment error properly may be found harmless.” (Id. at p. 839.) The reviewing court is also to keep in mind that the record may not contain all of the evidence that might have been presented on the issue of the aggravating circumstances, and the somewhat vague or subjective language in some of the circumstances may make it difficult to be confident about what the jury would have decided. (Id. at pp. 839-840.)
Sandoval then addressed the Attorney General’s contention that the evidence justified a conclusion, beyond a reasonable doubt, that the jury would have found each of the aggravating circumstances named by the trial court to be true. (Sandoval, supra, 41 Cal.4th at pp. 840-843.) Taking each of the aggravating circumstances in turn, the court found reasons why it could not reach the conclusion requested by the Attorney General. For example, the record did not “reflect such a clear-cut instance of victim vulnerability that we confidently can conclude the jury would have made the same findings, as might be the case if, for example, the victims had been elderly, very young, or disabled, or otherwise obviously and indisputably vulnerable.” (Id. at p. 842.) Due to disputes in the evidence, it was impossible to decide whether the jury would have found that the defendant was a motivating factor in the shooting. The shootings involved great violence, and might be said to involve a high degree of cruelty, viciousness or callousness, but that behavior was by the shooters, and not by the defendant. The court could not conclude “with any degree of confidence, much less beyond a reasonable doubt, that the jury would have found that defendant demonstrated callous behavior and a lack of concern for the consequences of her actions, or that the offense was planned and premeditated.” (Id. at p. 841.) Therefore, the Sixth Amendment error was not harmless, and a reversal for resentencing was necessary. (Sandoval, at pp. 840-843.)
C. Analysis
i. Error
The trial court cited four aggravating factors. The first, which we will call the viciousness factor, was that “the crime involved great violence, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness.” The second was use of a weapon. The third was that “[t]he planning, sophistication, or professionalism with which the crime was carried out or other facts do indicate premeditation.” The fourth was a “particularly vulnerable” victim. The trial court also named a circumstance in mitigation, appellant’s lack of a significant criminal record.
The first and fourth circumstances in aggravation, viciousness and a particularly vulnerable victim, are underlying facts that must either be admitted by the defendant or established by the jury’s verdict under Sandoval, supra, 41 Cal.4th at pages 837 and 838. Since there was neither an admission nor a jury verdict for those facts, their use as circumstances in aggravation constituted a clear Blakely violation.
Utilization of weapons use as a circumstance in aggravation did not violate appellant’s Sixth Amendment right to jury, since there was a jury finding that appellant used a weapon, in the context of the weapons use enhancement. (See Black II, supra, 41 Cal.4th at pp. 816-817.) However, there is an entirely different problem with that circumstance in aggravation, unrelated to the Sixth Amendment. Pursuant to section 1170, subdivision (b), “[t]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” (Cal. Rules of Court, rule 4.420(c); 3 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 256, p. 340.) Because appellant was given an enhancement for weapons use, that fact could not be used for the upper term.
There is a related problem with the remaining circumstance in aggravation, “planning, sophistication, or professionalism” that showed “premeditation.”
On count 1, the jury found that the murder was willful, deliberate, and premeditated pursuant to section 664(a). Due to that finding, appellant received a life sentence on count 1, rather than the punishment of five, seven or nine years which is section 664(a)’s general penalty for attempting an offense that is punishable by life imprisonment or death.
Section 664(a) generally punishes an attempt to commit a crime with one-half of the prison term for the completed crime. “However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”
A premeditation allegation under section 664(a), “constitutes an element of an offense.” (People v. Seel (2004) 34 Cal.4th 535, 550.) “A fact that is an element of the crime may not be used to impose a greater term.” (Cal. Rules of Court, rule 4.420(d); see People v. Scott (1994) 9 Cal.4th 331, 350; 3 Witkin & Epstein, Cal. Criminal Law, supra, § 257, p. 341.) The fact of premeditation was properly used to increase appellant’s sentence on count 1 based on the jury’s finding under section 664(a), but it could not also be to justify the upper term on the GBI enhancement due to the prohibition against dual use of facts.
Respondent argues that the trial court’s use of the word “ ‘premeditation’ was ‘merely an analytical aside,’ ” and does not show that the court found premeditation as a circumstance in aggravation. It appears to us that the trial court added the word “premeditation,” a fact the jury had already found, to the aggravating circumstance of California Rules of Court, rule 4.421(a)(8), which states: “The manner in which the crime was carried out indicates planning, sophistication, or professionalism.” The trial court mentioned both planning and premeditation in virtually the same breath, and we see no discernible difference between them, for the purpose of the factor in aggravation in this case. The problem, as indicated, is that appellant’s sentence already was increased for the fact of premeditation.
Respondent argues that any issue over dual use of the fact of premeditation was waived because appellant did not object on that basis below. (People v. Scott, supra, 9 Cal.4th 331, 356.) We find an adequate objection in trial counsel’s argument that the upper term on the GBI enhancement could not be based on facts that were elements of the crime.
ii. Prejudice
All four of the factors in aggravation cited by the trial court were legally unavailable. Two of them, use of a weapon and planning or premeditation, constituted an improper dual use of facts irrespective of Blakely and Cunningham. The other two, viciousness and a vulnerable victim, violated appellant’s Sixth Amendment right under Blakely and Cunningham. There also was a circumstance in mitigation, appellant’s lack of prior criminal convictions.
Under Sandoval, supra, 41 Cal.4th at page 839, we may find the Sixth Amendment error to be harmless if we can conclude, “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.”
Applying the Sandoval test, we are confident that the Blakely errors as to the GBI enhancement on the attempted murder count, count 1, were harmless, in the context of the very unusual circumstances of this case.
Only one valid aggravating circumstance is necessary.
The jury’s guilty verdict on count 2, aggravated mayhem, means the jurors believed that appellant had the specific intent to permanently disable or disfigure Monica.
The facts of the crime were unusually horrific. Appellant waited for Monica outside the beauty shop with a sharp object hidden in his hand. When she emerged, he grabbed her and told her that if he could not have her, no one else could. He then slashed her across the face, cut her throat from ear to ear, repeatedly stabbed her in the chest and back, and ran off, leaving her for dead.
Based on the combination of the verdict on count 2 and the unusually horrific facts of the crime, we conclude, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true the viciousness factor if it had been asked to decide that issue. (Sandoval, supra, 41 Cal.4th at p. 839.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.