Filed 10/19/20 P. v. Guzman CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B299861
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA146738
v.
LEONARDO GUZMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed as
modified with directions.
Adrian K. Panton, 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
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Leonardo
Guzman of assault with a firearm, possession of a firearm by a
felon, and unlawful possession of ammunition. The jury also
found true allegations that he personally used a firearm and
inflicted great bodily injury during the commission of the assault.
The trial court sentenced him to 17 years in state prison.
Guzman testified at trial. On appeal, he argues the trial
court prejudicially abused its discretion under Evidence Code
section 352 by ruling Guzman’s 2003 automobile theft conviction
was admissible for impeachment purposes. He also raises several
arguments related to various assessments and a restitution fine
the trial court imposed. We reject his arguments, correct the
amounts of certain assessments in the oral pronouncement of
judgment, and affirm the judgment.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an amended
information charging Guzman with assault with a firearm (Pen.
Code, § 245, subd. (a)(2); count one),1 possession of a firearm by a
felon (§ 29800, subd. (a)(1); count two), unlawful possession of
ammunition (§ 30305, subd. (a)(1); count three), and attempted
murder (§§ 664, 187, subd. (a); count four). The information
further alleged Guzman personally used a firearm (§ 12022.5,
subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a))
during the commission of count one and sustained five prior
prison term convictions (§ 667.5, subd. (b)).
1 All undesignated statutory references are to the Penal
Code.
2
The trial court granted the prosecution’s oral motion to
dismiss count four. The jury convicted Guzman on the remaining
three counts. The jury found the firearm use and great bodily
injury allegations true, and found Guzman sustained six prior
felony convictions for purposes of the possession of a firearm by a
felon charge. Guzman admitted the prior prison term allegations.
The court sentenced Guzman to 17 years in state prison,
consisting of an upper term of four years on count one, plus 10
years for the firearm enhancement and three years for the great
bodily injury enhancement. The court imposed concurrent three-
year upper terms on counts two and three. The court dismissed
the prior prison term enhancements.
Guzman timely appealed.
FACTUAL BACKGROUND
I. Prosecution’s case
Wilber Lozano lived on South Broadway Street in Los
Angeles. He often saw Guzman riding his bicycle on the street.
He knew Guzman as “Shorty.” Guzman was missing the middle
and ring fingers from his right hand.
At approximately 3:00 a.m. on July 15, 2018, Lozano was
lying down in the back bedroom of his house. Rolando Gomez,
Lozano’s friend, was drinking beer on the patio. Guzman rode up
on his bicycle and told Gomez he was looking for “Poncho,” which
was Lozano’s nickname among friends.
Gomez told Lozano someone was looking for him. Lozano
went outside. Guzman claimed Lozano stole his bicycle and
needed to pay him $40. Lozano did not steal Guzman’s bicycle
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and did not know what Guzman was referring to. Guzman took a
gun out of his jacket and shot Lozano two or three times. After
shooting him, Guzman told Lozano: “Now you don’t owe me
anything,” and left on his bicycle. One of the bullets hit the artery
in Loranzo’s leg. Gomez found Lozano passed out behind the
house. He put a tourniquet on Lozano’s leg.
Los Angeles Police Department Officers Lugo and Herrera
arrived at the scene. They followed a blood trail to the back of the
house where they found Lozano lying unconscious in a pool of
blood. Paramedics took Lozano to the hospital. Lozano had to
have two surgeries. He had scarring on both his legs. At the time
of trial, Lozano still had pain in his legs, and he could not feel his
right leg from his knee to his ankle.
On July 17, Detectives Hyoung and Langsdale contacted
Lozano. Detective Hyoung asked Lozano several times who the
shooter was, and Lozano did not give a straight answer. Detective
Hyoung interviewed Gomez, who identified the shooter.
At 1:00 p.m. on August 1, Lozano and his friend Humberto
Hernandez went looking for Guzman. They located Guzman and
called the police. Officers Mejia and Andrade found Guzman and
handcuffed him to a gate. Officer Mejia took Lozano to where
Guzman was detained, and Lozano identified Guzman as the
man who shot him. Lozano said Guzman had difficulty getting
the gun out of his pocket because of his missing fingers. In a
recorded interview from August 15 that was played for the jury,
Lozano again told Detective Hyoung that Guzman was the
shooter. Lozano also told Detective Hyoung that while he was in
the hospital, Guzman’s brother went to his house and shot it up.
Ronald Morales knew Lozano, Gomez, and Guzman. When
shown a surveillance video of the shooting, Morales identified
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Guzman as the shooter. When Morales testified, he was in
custody for a felon in possession of a firearm charge. Prior to
testifying, Morales was placed in the same cell with Guzman,
who told Morales to testify Guzman was not the shooter.
The prosecution introduced evidence showing Guzman
sustained prior felony convictions. Los Angeles Police
Department fingerprint technician Nina Kaminsky took
Guzman’s fingerprints, compared them to the fingerprints in
Guzman’s prior prison packet and other documents showing his
prior convictions, and concluded the fingerprints all matched.
II. Defense case
Guzman testified that he knew Lozano as an acquaintance,
but did not shoot him.
DISCUSSION
I. The trial court did not abuse its discretion
Guzman’s prior felony convictions were introduced to
impeach him. On appeal, Guzman argues the trial court abused
its discretion by denying his motion to exclude a 2003 auto theft
conviction without considering that five more recent convictions
would also be used to impeach him. The Attorney General
contends the trial court did not abuse its discretion by admitting
the 2003 conviction, and even assuming it did, the error was
harmless. We agree with the Attorney General.
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A. Background
During a break in the prosecution’s case, defense counsel
objected to the admission of Guzman’s convictions from 2003 for
auto theft and 2008 for possession of a firearm by a felon, arguing
their probative value was substantially outweighed by the danger
of creating undue prejudice under Evidence Code section 352
because the convictions were more than 10 years old. The
prosecution argued the 2003 conviction was not sufficiently
remote to warrant exclusion because it was probative to show
Guzman continuously engaged in illegal activity. The prosecution
argued the 2008 conviction was not remote because it occurred
within 10 years of the shooting for which Guzman was on trial.
The experienced trial judge ruled the convictions
admissible under Evidence Code section 352. The court correctly
concluded Guzman’s priors from 2003 and 2008, as well as his
other priors, were crimes of moral turpitude. The court
acknowledged the 2003 conviction was more than 10 years old,
but concluded the conviction was not remote because the
additional convictions Guzman sustained in 2008, 2010, 2012,
2013, and 2015 demonstrated continuous criminal conduct
affecting his credibility.2
Guzman testified at trial. On direct examination, he
admitted that he sustained prior felony convictions. On cross-
examination, the prosecution asked Guzman about his prior
felony convictions, including the 2003 conviction for vehicle theft
2 Although the court did not explicitly say so, it appears the
court agreed with the prosecution that the 2008 conviction was
less than 10 years old. Guzman now concedes that point and does
not assert that admission of the 2008 conviction was error.
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and the 2008 conviction for being a felon in possession of a
firearm. Guzman answered the prosecution’s questions by
admitting he sustained the prior felony convictions.
B. Analysis
“A witness may be impeached with any prior conduct
involving moral turpitude whether or not it resulted in a felony
conviction, subject to the trial court’s exercise of discretion under
Evidence Code section 352. [Citations.]” (People v. Clark (2011)
52 Cal.4th 856, 931.)3 “When determining whether to admit a
prior conviction for impeachment purposes, the court should
consider, among other factors, whether it reflects on the witness’s
honesty or veracity, whether it is near or remote in time, whether
it is for the same or similar conduct as the charged offense, and
what effect its admission would have on the defendant’s decision
to testify. [Citations.]” (Ibid.) “Because the court’s discretion to
admit or exclude impeachment evidence ‘is as broad as necessary
to deal with the great variety of factual situations in which the
issue arises’ [citation], a reviewing court ordinarily will uphold
the trial court’s exercise of discretion [citations].” (Id. at p. 932.)
Applying these principles, we reject Guzman’s argument
that the trial court abused its discretion by finding his 2003
vehicle theft conviction admissible under Evidence Code section
3 Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
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352. “California courts have repeatedly held that prior
convictions for burglary, robbery, and other various theft-related
crimes are probative on the issue of the defendant’s credibility.
[Citations.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925
(Mendoza).)
On appeal, Guzman does not challenge the trial court’s
conclusion that the 2003 conviction was not sufficiently remote to
warrant exclusion. Instead, relying on Mendoza, supra, 78
Cal.App.4th 918, Guzman argues the trial court erred by not
explicitly considering the “numerosity” of the prior convictions in
deciding to admit the 2003 conviction. We disagree. “[T]here is no
limitation on the number of prior convictions with which the
defendant’s credibility can be impeached. [Citations.]” (Mendoza,
supra, 78 Cal.App.4th at p. 927.) Guzman appears to be arguing
the trial court was required to explicitly state on the record that
it had considered the possibility that the 2003 conviction might
be inadmissible because other prior convictions were being
admitted. Here, we reject both Guzman’s premise and conclusion.
The court obviously considered the 2003 conviction in light of the
later convictions. The test is not whether the trial court stated
every possible reason to admit the evidence or every possible
reason not to. The test is whether the court abused its broad
discretion. We find no error in the court’s conclusion that the
probative value of the 2003 conviction was not substantially
outweighed by the danger of undue prejudice.4
4 Even if we were to find error, we would find no prejudice.
The evidence presented against Guzman was very strong, and
included direct testimony from the victim and Gomez that
Guzman was the shooter. It is not reasonably probable that
excluding one of his six prior felony convictions would have
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II. Guzman’s unauthorized sentence argument
Guzman next points out that although the abstract of
judgment reflected that the trial court imposed $120 in court
security assessments (one $40 assessment for each of Guzman’s
three convictions; § 1465.8, subd. (a)) and $90 in court facilities
assessments (one $30 assessment for each conviction; Gov. Code,
§ 70373), this is inconsistent with the court’s oral pronouncement
of judgment, in which the court imposed $60 ($20 per count) in
court security assessments and one $30 court construction fee.
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
Guzman argues: “Implicit in the court’s failure to orally impose
the assessment[s] was a finding that appellant lacked the ability
to pay.” He argues that because the assessments listed on the
abstract of judgment were not orally pronounced as part of the
sentence, and because they were statutorily unauthorized, they
must be stricken.
We reject Guzman’s argument that the trial court stated
and imposed the correct assessment amounts in the abstract of
judgment and minute order but incorrect amounts during the
oral pronouncement of judgment based on an implicit finding of
an inability to pay. Instead, it appears the court made a slight
error during oral pronouncement of judgment. The assessment
amounts stated in the abstract of judgment and minute order
were correct. (See § 1465.8, subd. (a)(1) [“To assist in funding
court operations, an assessment of forty dollars ($40) shall be
imposed on every conviction for a criminal offense . . . .”]; Gov.
resulted in a more favorable outcome for him. (See People v.
Watson (1956) 46 Cal.2d 818, 836.)
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Code, § 70373 [“To ensure and maintain adequate funding for
court facilities, a[] [$30] assessment shall be imposed on every
conviction for a criminal [misdemeanor or felony] offense.”].) We
order the oral pronouncement of judgment modified to impose a
$30 court facilities assessment and a $40 court operations
assessment for each count. (See People v. Rosales (2014) 222
Cal.App.4th 1254, 1263.)
III. Guzman’s Dueñas arguments
As discussed above, the trial court imposed three $40 court
security assessments (§ 1465.8, subd. (a)), and three $30 court
facilities assessments (Gov. Code, § 70373). The court also
imposed a $300 restitution fine. (§ 1202.4, subd. (b)(1).) Relying
on Dueñas, supra, 30 Cal.App.5th 1157, Guzman now challenges
the assessments and fine on due process grounds. Guzman
concedes he did not object to the imposition of the assessments or
fine. Guzman was sentenced over three months after Dueñas was
decided. Guzman thus has forfeited his Dueñas argument by
failing to object. (See People v. Bipialaka (2019) 34 Cal.App.5th
455, 464; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-
1155.)
We also reject Guzman’s contention, raised in the
alternative, that his counsel’s failure to object constituted
ineffective assistance of counsel. To establish ineffective
assistance of counsel, an appellant bears the burden of showing
prejudice, meaning a reasonable probability that but for the
challenged act or omission of counsel, the appellant would have
obtained a more favorable result. (People v. Centeno (2014) 60
Cal.4th 659, 674-676 (Centeno); see also In re Crew (2011) 52
10
Cal.4th 126, 150 [“If a claim of ineffective assistance of counsel
can be determined on the ground of lack of prejudice, a court need
not decide whether counsel’s performance was deficient.
[Citation.]”].) Although Guzman asserts he was prejudiced
because the lack of objection deprived him of a Dueñas hearing,
he does not address whether the record contains any support for
the assertion that the trial court would have granted him Dueñas
relief. Upon reviewing the record, we find no indication that
Guzman was unable to pay the fine and assessments. (Cf. People
v. Aviles (2019) 39 Cal.App.5th 1055, 1075-1076 [inability to pay
costs of appointed counsel does not establish inability to pay
restitution fine or other court-imposed fees].) Further, the court
could have found him able to pay the fine and assessments from
prison wages. (See id. at pp. 1075-1077 [any Dueñas error was
harmless due to defendant’s ability to earn prison wages equaling
amount of fine and assessments]; People v. Jones (2019) 36
Cal.App.5th 1028, 1035 [same]; People v. Johnson (2019) 35
Cal.App.5th 134, 139-140 [same].) Guzman has failed to satisfy
his burden to show prejudice.
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DISPOSITION
The oral pronouncement of judgment is ordered modified to
reflect a $30 court facilities assessment and a $40 court security
assessment for each count. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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