People v. Diaz CA4/2

Filed 9/28/20 P. v. Diaz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E071215

v. (Super.Ct.No. SWF1302275)

RAFAEL RODRIGUEZ DIAZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Elaine M. Kiefer, Judge.

Affirmed in part, reversed in part, and remanded with directions.

Torres & Torres and Steven A. Torres, under appointment by the Court of Appeal,

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B.

Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

After absconding from parole supervision, defendant and appellant Rafael

Rodriguez Diaz fled from police on three separate occasions to avoid arrest. According

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to the prosecution, the third of these chases culminated in Diaz firing two shots from a

handgun at a police officer. The officer was not injured, but Diaz was hit three times

when police returned fire. Diaz was tried and convicted on a number of charges and

enhancements, and sentenced to a total of 64 years four months to life in prison.

Diaz argues here that (1) he received ineffective assistance of counsel when his

attorney failed to request a mistrial in response to certain testimony by a police expert;
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(2) pursuant to Penal Code section 654, the trial court should have suspended his

punishment for felony evading (count 8), a six-year term, as well as enhancements of that

count totaling 12 years; (3) the trial court miscalculated his presentence custody credits;

(4) the trial court failed to consider his ability to pay various imposed fines and fees, in

violation of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); (5) he is entitled to

resentencing under the newly enacted Senate Bill No. 1393 (2017-2018 Reg. Sess.)

(Senate Bill 1393); and (6) he is entitled to resentencing under the newly enacted Senate

Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136). The People concede the last of

these issues.

We decline to consider Diaz’s ineffective assistance claim, finding it more

appropriately considered on a record developed in a habeas corpus proceeding. We reject

Diaz’s contention that section 654 applies to his punishment for felony evading. We

agree with the parties, however, that the matter must be remanded; the post sentencing

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Further undesignated statutory references are to the Penal Code.

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changes to the law, along with certain trial court errors in the initial sentence, require

Diaz to be resentenced.

I. BACKGROUND

Diaz’s current charges arise from three separate incidents. First, on August 6,

2013, Diaz fled on foot from a sheriff’s deputy on patrol. The deputy had spotted Diaz

standing outside a gold Honda Civic and recognized him as a wanted parolee at large.

Diaz successfully evaded arrest. The deputy searched the car he left behind and found,

among other things, Diaz’s identification card and a loaded handgun. The gun was later

determined to have been stolen.

On August 19, 2013, the same sheriff’s deputy spotted Diaz driving the same gold

Honda. Before the deputy had caught up with Diaz, Diaz pulled into a parking lot,

slowed almost to a stop, and a female passenger rolled out of the car. A high speed chase

then ensued, with Hemet police taking over the pursuit. Diaz was apprehended about 21

minutes and 18 miles later, after his car broke down. Police discovered a box of

ammunition in the trunk of the car.

In the wee hours of the morning on January 24, 2014, a Hemet police officer

noticed a white Honda Civic driving strangely. A license plate check led the officer to

suspect the car was stolen, because it came back as belonging to a “recently recovered

stolen vehicle.” When the officer pulled up next to the car at a stop sign, the driver

turned his body away and put his head down, which the officer interpreted as an attempt

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to hide his face. The officer initiated a traffic stop after noting the car had a modified

exhaust and observing it roll through a stop sign.

The car pulled over briefly, but then sped away after the officer came to a stop and

opened his door. After a high speed chase, the officer temporarily lost sight of the

vehicle, but then spotted sparks in the distance. The officer believed the sparks were

from the fleeing car bottoming out as it went over dips in the road at high speed. The

officer discovered he was correct when he caught up to the car, which had come to a stop

at an angle to the curb on the opposite side of the street. Diaz would testify at trial that he

had lost control of the car and slid into the curb, at which point the car stalled and would

not restart.

From the way the car was stopped, the officer believed that the driver had

probably already fled on foot, since he had a “pretty good lead on us, several seconds.”

The officer therefore pulled up alongside the car, planning to pass it and pull onto a side

street to start setting up a perimeter. As he did so, he stopped and shined a spotlight into

the car, and was surprised to see the driver still sitting in the car.

The officer opened his door and stepped out of his car. As he did so, from a

distance of 10 or 15 feet, he saw the driver fumbling with something in the center console

of the car, and then pointing a revolver at him. The officer dove backwards. As he did so

he heard gunfire. This all happened, according to the officer, “probably all within the

same second. It was very, very fast.” It was later determined that Diaz fired the

revolver—a .357 Magnum—twice, but the officer was not hit. The officer returned fire,

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as did two other officers who arrived on scene. Diaz was shot three times. After a

standoff of about 17 minutes, Diaz surrendered and was taken into custody.

Diaz was charged with nine counts, including: two counts of being a felon in

possession of a firearm (§ 29800, subd. (a)(1), counts 1, 9), one count of being a felon in

possession of a loaded firearm in a public place (§ 25850, subd. (c)(1), count 2); a

misdemeanor count of evading a police officer (§ 148, subd. (a)(1), count 3); two counts

of fleeing a pursuing officer with willful and wanton disregard for safety (Veh. Code,

§ 2800.2, counts 4 & 8); one count of being a felon in possession of ammunition

(§ 30305, count 5); one count of attempted murder of a peace officer (§§ 664, subd. (e),

187, subd. (a), count 6); and one count of assault with a firearm (§ 245, subd. (d)(1),

count 7). Counts 1 through 3 were alleged to have been committed on August 6, 2013,

counts 4 and 5—on August 19, 2013, counts 6 through 9—on January 24, 2014.

The information also alleged a number of firearms and recidivism based

enhancements. The firearms enhancements included, as to count 6, that Diaz personally

discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)), and as to counts 7 and

8, that Diaz personally used a firearm during the commission of the crimes (§§ 12022.5,

subd. (a), 1192.7, subd. (c)(8)). As to counts 6 through 9, the information alleged that

Diaz had committed the crimes while on bail (§ 12022.1). The information further

alleged that Diaz had one strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)),

one serious felony prior (§ 667, subd. (a)), and three prison priors (§ 667.5, subd. (b)).

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 The jury found Diaz guilty as charged, and Diaz admitted his prior convictions.

The trial court imposed a sentence including the following consecutive terms: as to count

6, a term of seven years to life, doubled to 14 years to life by the strike prior conviction,

plus a 20-year term for the firearms enhancement; four terms of one year four months, for

counts 1, 4, 5, and 9; as to count 8, a six-year term, plus 10 years for the firearms

enhancement and two years for the on-bail enhancement; five years for the serious felony
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prior; and two one-year terms, for two of the prison priors (the third was stricken). The

trial court initially calculated this sentence to add up to 54 years four months to life. On a

later date, it corrected this mathematical error, imposing the same terms, but correctly

describing the total as 64 years four months to life.

The trial court also imposed various mandatory fines and fees, including a $2,500
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restitution fine, a $360 court operations assessment, and a $270 conviction assessment.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Diaz contends that his trial counsel provided ineffective assistance of counsel by

failing to request a mistrial in response to certain testimony by a prosecution expert. We

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The court imposed stayed or concurrent sentences on the remaining counts and
enhancements.
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The minutes of the sentencing hearing and the abstract of judgment erroneously
describe the restitution fine to be $2550. The trial court’s oral pronouncement of
judgment, stating that the court “will impose a $2500 restitution fine,” is controlling.
(See, e.g., People v. Harrison (2005) 35 Cal.4th 208, 226.)

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decline to reach the merits of this argument, which is more appropriately considered on

an evidentiary record developed in a habeas corpus proceeding.

1. Additional Background

At trial, Diaz testified in his own defense. He insisted that his intentions on

January 24, 2014 were suicidal, not homicidal, stating “I don’t hurt cops. I run from

them,” and denying that he ever had any intention of killing anyone other than himself.

According to Diaz, he had just put the gun to his own head when he saw the officer was

coming. At the last moment, he lost his nerve and pulled the gun away. He stated that he

did not remember shooting a second time, though he conceded that it was possible that he

did.

After the January 2014 incident, forensic examination of Diaz’s car revealed a

bullet hole in the windshield that appeared to have originated from the inside of the car,

based on visible powder burns on the adjacent pillar and the way the glass had broken.

During the prosecution’s case-in-chief, the prosecutor informed the court that he

intended to elicit testimony from a police detective, opining that the burn patterns around

the hole created by the bullet exiting the car showed the shot was fired from about a foot

away. Such testimony would tend to show that Diaz was holding the gun with his arm

outstretched when the shot was fired, rather than close to his own head. The defense

objected to the testimony. After a hearing pursuant to Evidence Code section 402, the

trial court excluded the testimony, both because the detective’s opinion was untimely

disclosed to the defense, and because the detective “was not familiar with the burn

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pattern of a .357 Magnum, which is the type of weapon that was used in this case.” The

detective was permitted to testify generally about how burn marks can appear, including

that the closer a gun is fired to an object the smaller the burn pattern will be. The court

specified, however, that the detective “is not, under any circumstances, to render an

opinion about feet or distance, you know, exact distances.”

During the detective’s testimony, he was asked by the prosecutor: “At the range,

is there anything specific that you have done in your training at the range that has shown

you powder burns and how close you need to be for them to kind of demonstrate or show

up on an item?” The detective responded: “Yes. So we qualify with our weapons

quarterly. So every quarter, part of the qualification process is within an arm’s length.

When we simulate—we’re taking notes or whatever on our notebook. When we

simulate, we have to pull our gun and fire a round. That is very much a close-contact

shot within a foot. And I can tell you that can leave marks on the target.” The detective

later testified that burns are not visible from shots taken from about three feet away.

Under questioning by defense counsel, the detective admitted that his testimony

about specific distances related to his own weapon, which is not a .357 Magnum. The

detective conceded that he did not know how close one had to be to leave a powder burn

on a paper target with a .357 Magnum.

On the defense’s motion, the trial court struck the detective’s testimony in its

entirety, and instructed the jury to disregard it. Defense counsel did not request a

mistrial.

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 2. Analysis

Diaz argues that his trial counsel’s successful motion to strike did not obviate the

need to also request a mistrial, asserting that “the bell was already rung, and this

devastating testimony eviscerated appellant’s defense that he was trying to commit

suicide not put his arm straight out and shoot at the police officer.” In his view, his trial

counsel’s failure to request a mistrial amounted to ineffective assistance of counsel.

To establish ineffective assistance of counsel, “the defendant must first show

counsel’s performance was deficient, in that it fell below an objective standard of

reasonableness under prevailing professional norms. Second, the defendant must show

resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient

performance, the outcome of the proceeding would have been different.” (People v. Mai

(2013) 57 Cal.4th 986, 1009.) On direct appeal, a conviction will be reversed for

ineffective assistance “only if (1) the record affirmatively discloses counsel had no

rational tactical purpose for the challenged act or omission, (2) counsel was asked for a

reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

All other claims of ineffective assistance are more appropriately resolved in a habeas

corpus proceeding.” (Ibid.)

Here, the record is silent as to why Diaz’s trial counsel did not move for a mistrial

in addition to or instead of requesting that the detective’s testimony be stricken from the

record. It is possible that the failure was for some unsatisfactory reason, for example, if

trial counsel failed to consider the possibility of requesting a mistrial. But it is also

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possible that he had sound reasons not to pursue the issue. For example, perhaps he

reasonably believed that the jury was capable of following the court’s instruction to

disregard the detective’s testimony, or reasonably viewed the detective’s testimony to be

less “devastating” than Diaz’s appellate counsel asserts here. Accordingly, we find it

would be inappropriate to decide the merits of Diaz’s ineffective assistance claim here.

The issue is more appropriately considered in a habeas corpus proceeding.

B. Senate Bill 136

“Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to

impose a one-year sentence enhancement for each true finding on an allegation the

defendant had served a separate prior prison term and had not remained free of custody

for at least five years.” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Effective

January 1, 2010, Senate Bill 136 amended section 667.5, subdivision (b), to limit its prior

prison term enhancement to only prior prison terms for certain sexually violent offenses.

(§ 667.5, subd. (b).)

The parties agree that none of Diaz’s prior prison terms were for a sexually violent

offense. The parties also agree that the amendments enacted by Senate Bill 136 apply

retroactively to any case in which the judgment is not yet final on Senate Bill 136’s

effective date. (See People v. Jennings, supra, 42 Cal.App.5th at p. 682.) We agree with

the parties on both of these issues. The two section 667.5 enhancements found true and

imposed against Diaz, therefore, must be stricken.

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 Because the trial court did not previously sentence Diaz to the maximum possible

sentence, the trial court could exercise its discretion to reassess Diaz’s total sentence on

remand, though it may not sentence him to a term in excess of the original. (See People

v. Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on

remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial

court can exercise its sentencing discretion in light of the changed circumstances’”];

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [trial court entitled to reconsider

entire sentencing scheme on remand, but may not sentence defendant to term in excess of

original].) We therefore will remand the matter with instructions to strike the prison

priors and resentence Diaz accordingly.

C. Multiple Punishments

Diaz’s sentence includes a sentence of 14 years to life for the substantive charge of

attempted murder (count 6), plus a 20-year term for the firearms enhancement of that

count (§ 12022.53, subd. (c)). It also includes a term of six years for felony evading

(count 8), plus 10 years for the firearms enhancement (§ 12022.5, subd. (a)) and two

years for the on-bail enhancement (§ 12022.1) of that count. Diaz argues that punishment

for count 8 and its enhancements must be stayed pursuant to section 654, because “the

evading punished in count 8 was continuing, and the attempted murder was part and

parcel of that evasion.” The People concede that punishment for the firearms

enhancement of count 8 must be stayed, but otherwise disagree. We agree with the

People’s conclusion.

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 “Section 654 precludes multiple punishments for a single act or indivisible course

of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘Few if any

crimes, however, are the result of a single physical act. “Section 654 has been applied

not only where there was but one ‘act’ in the ordinary sense . . . but also where a course

of conduct violated more than one statute and the problem was whether it comprised a

divisible transaction which could be punished under more than one statute within the

meaning of section 654.” [Citation.]’” (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)

“‘Whether a course of criminal conduct is divisible and therefore gives rise to

more than one act within the meaning of section 654 depends on the intent and objective

of the actor. If all of the offenses were incident to one objective, the defendant may be

punished for any one of such offenses but not for more than one.’” (People v. Latimer,

supra, 5 Cal.4th at p. 1208.) “[T]he question of whether defendant harbored a ‘single

intent’ within the meaning of section 654 is generally a factual one . . . .” (People v.

Harrison (1989) 48 Cal.3d 321, 335.) “The question whether section 654 is factually

applicable to a given series of offenses is for the trial court, and the law gives the trial

court broad latitude in making this determination. Its findings on this question must be

upheld on appeal if there is any substantial evidence to support them.” (People v.

Hutchins (2001) 90 Cal.App.4th 1308, 1312.)

Substantial evidence supports the conclusion that, when Diaz fired his gun at the

officer, he no longer was acting out of the singular intent of evading arrest. After his car

became disabled, he had time to flee on foot, as he had on at least one previous occasion.

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He chose not to do so. A reasonable inference, albeit not the only one, is that Diaz had

developed the separate intention of confronting the pursuing officer, either before

continuing his attempt to escape or otherwise. On this record, we may not disturb the

trial court’s determination that section 654 did not apply to require punishment for the

escape charge to be stayed.

Nevertheless, as the People concede, the trial court did erroneously impose
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multiple punishment in a different respect. The firearms enhancement of count 6 and the

firearms enhancement of count 8 both relate to the same act of firing the gun at the

pursuing officer; there was no evidence Diaz used the gun in any other manner during the

chase. It is inappropriate to enhance Diaz’s sentence with two firearms enhancements for

the same, single use of the gun, so the lesser of the two enhancements, the one for count

8, must be stayed.

We note that the exact statutory basis for staying the enhancement for count 8 may

be debatable, though the conclusion is not. The People propose that the firearms

enhancement of count 8 must be stayed pursuant to section 12022.53, subdivision (f),

which states that a section 12022.5 enhancement “‘shall not be imposed on a person in

addition to an enhancement imposed pursuant to this section. ’” But in People v.

Palacios (2007) 41 Cal.4th 720, 727, 731, the Supreme Court found significance in the

fact that section 654 uses the terminology “act or omission,” and thus “prohibits multiple

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Indeed, this is an argument that the People raised first, in their briefing on
appeal. Diaz joined in the People’s argument in his reply brief as an alternative to his
own position that all punishment for count 8 should be stayed.

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punishment per act,” in contrast to section 12022.53, which “do[es] so per crime.”

Nevertheless, if section 12022.53, subdivision (f) does not apply to bar multiple

punishment here, section 654 certainly does. (See People v. Ahmed (2011) 53 Cal.4th

156, 159-160 [§ 654 applies to enhancements when more specific statutes “do not

provide the answer”].)

We trust that in resentencing Diaz, the trial court will stay punishment for the

firearms enhancement of count 8 if punishment for the firearms enhancement of count 6
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is again imposed.

D. Senate Bill 1393

Diaz contends that he is entitled to a remand so he can be resentenced in light of

Senate Bill 1393. The People do not concede that the Senate Bill 1393 issue alone would

justify remand but, acknowledging that they have conceded remand is appropriate for

another reason, express no objection to remanding the Senate Bill 1393 issue as well. We

agree that remand is appropriate.

Effective January 1, 2019, Senate Bill 1393 amended sections 667, subdivision

(a), and 1385, subdivision (b), to allow a court in its discretion to strike or dismiss a prior

serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Under

the versions of these statutes in effect when the trial court sentenced Diaz, the court was

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The trial court could instead choose to strike the section 12022.53, subdivision
(a) enhancement. (See § 12022.53, subd. (h) [“The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law”].)

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required to impose a five-year consecutive term for “[a]ny person convicted of a serious

felony who previously has been convicted of a serious felony” (former § 667, subd. (a)),

and the court had no discretion “to strike any prior conviction of a serous felony for

purposes of enhancement of a sentence under Section 667.” (Former § 1385, subd. (b).)

The People concede that the changes to the law enacted by Senate Bill 1393 apply

to judgments, like the one in this case, which where not final on January 1, 2019, when

Senate Bill 1393 went into effect. (People v. Garcia (2018) 28 Cal.App.5th 961, 973.)

They contend that the record demonstrates that the trial court would not have struck the

punishment for Diaz’s prior serious felony enhancement, so remand would be

unnecessary, taking the issue in isolation. Since the matter is already being remanded for

another reason, however, the People “do[] not object to remanding to address Senate Bill

1393 as well.”

We accept the People’s concession, and decline to speculate how the trial court

would have exercised its discretion if Senate Bill 1393 had been effective at the time of

sentencing. We offer no opinion about how it should do so on remand.

E. Presentence Custody Credits

Diaz was initially sentenced on August 31, 2018. The trial court corrected its

mathematical error regarding Diaz’s total sentence on September 7, 2018. When it did

so, it did not adjust Diaz’s presentence custody credits to reflect the time period between

August 31 and September 7, 2018. The parties dispute whether it should have done so.

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 This dispute is moot, since the matter must be remanded for resentencing in any

case, and thus recalculation of Diaz’s presentence custody credits based on the new

sentencing date. (See People v. Buckhalter (2001) 26 Cal.4th 20, 41.) We therefore need

not and do not decide the matter.

F. Dueñas Error

Diaz contends that his constitutional rights were violated by the trial court’s failure

to consider his ability to pay the various imposed mandatory fines and fees. This is an

argument he raised for the first time only on appeal.

In Dueñas, supra, 30 Cal.App.5th at page 1157, decided while this appeal was

pending, the Court of Appeal held that it violates due process under the federal and state

Constitutions to impose the court operations and facilities fees without first determining

the convicted defendant’s ability to pay them. (Id. at pp. 1168-1169.) In addition, “to

avoid serious constitutional questions” raised by the statutory restitution scheme, the

Dueñas court decided execution of the mandatory restitution fine must be stayed unless

the trial court determines that the defendant has the ability to pay it. (Id. at p. 1172.)

Later cases have held that, at the ability to pay hearing, the defendant bears the burden of

showing his or her inability to pay, and the court “must consider all relevant factors,”

including “potential prison pay during the period of incarceration to be served by the

defendant.” (People v. Castellano (2019) 33 Cal.App.5th 485, 490 [remanding for an

ability to pay hearing]; accord People v. Santos (2019) 38 Cal.App.5th 923, 934 [on

remand, defendant must show inability to pay, and court may consider potential prison

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pay]; People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp), review granted Nov. 13,

2019, S257844 [same].) There is a split of authority in the Court of Appeal as to whether

Dueñas was correctly decided. (E.g., People v. Hicks (2019) 40 Cal.App.5th 320, 322,

327-329, review granted Nov. 26, 2019, S258946 [holding that Dueñas was wrongly

decided].) The California Supreme Court has granted review in Kopp to decide whether

courts must “consider a defendant’s ability to pay before imposing or executing fines,

fees, and assessments” and if so, “which party bears the burden of proof regarding

defendant’s inability to pay.” (People v. Kopp, review granted, Nov. 13, 2019, S257844

[2019 Cal.Lexis 8371].)

Here, however, we need not decide whether Dueñas was correctly decided, or

whether Diaz forfeited the issue by failing to raise it first in the trial court. As noted, the

matter must in any case be remanded for resentencing. On remand, Diaz may request a

hearing and present evidence demonstrating his inability to pay the challenged fines and

fees.

III. DISPOSITION

Defendant’s convictions are affirmed. His sentence is reversed. The matter is

remanded to the trial court with directions (1) to exercise its discretion under sections

667, subdivision (a)(1) and 1385, as amended by Senate Bill 1393; (2) to strike the

enhancements previously imposed under former section 667.5, subdivision (b); (3) if

requested, to consider Diaz’s arguments and evidence regarding his inability to pay fines

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and fees that otherwise would be imposed; and (4) to resentence Diaz in a manner

consistent with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

CODRINGTON
Acting P. J.

MENETREZ
J.

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