People v. Diaz CA2/2

Filed 6/23/21 P. v. Diaz CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B306058

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA431915)
v.

EZEQUIAS DIAZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Douglas W. Sortino, Judge. Affirmed.
Johanna Pirko, 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, Assistant
Attorney General, Noah P. Hill and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Ezequias Diaz (defendant)
appeals from his conviction of attempted murder.1 He contends
that the prosecutor engaged in prejudicial misconduct during
closing argument by misstating the law, that counsel rendered
ineffective assistance by failing to object, and that the trial court
improperly relied on the facts underlying the enhancement
allegations to impose the aggravated term. Finding defendant’s
contentions forfeited or without merit, we affirm the judgment.

BACKGROUND
Defendant was charged with the attempted murder of
Guadalupe Sanchez in violation of Penal Code sections 187 and
664, subdivision (a).2 It was alleged that the attempted murder
was willful, deliberate, and premeditated; that defendant
personally inflicted great bodily injury upon the victim within the
meaning of section 12022.7, subdivision (a); and that he used a
deadly and dangerous weapon, a car, in the commission of the
offense within the meaning of section 12022, subdivision (b)(1). A
jury convicted defendant of the attempted murder but found not
true the allegation that it was willful, deliberate and
premeditated. The jury found true the allegations of great bodily
injury and the use of a deadly weapon. The trial court sentenced

1 The information filed in this case has defendant’s name as
Jose Antonio Ruiz, which was an alias defendant used at his
place of employment. We found nothing in the record to show
that the information was ever amended to reflect defendant’s
true name, but the remainder of the record, including the
minutes and the verdict, refers to defendant’s true name.
2 All further statutory references are to the Penal Code,
unless otherwise indicated.

2
defendant to a total of 13 years in prison, consisting of nine years
for the attempted murder, plus three years for the great bodily
injury enhancement and one year for the use of a deadly weapon.3
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
Sanchez testified that on an evening in August 2014, he
bought a beer at Jerry’s Liquor store on his way home from work,
which he took outside and drank in front of the liquor store.
During this time a man he did not know came out of the store
and ran him over with a car. Sanchez could not remember the
incident very well. He did recall waking up in the hospital,
where he stayed for about three weeks undergoing surgeries. His
leg and chest were injured, and he lost a testicle. It took him
about six months to recuperate, during which time he could not
work and had to use crutches. At the time of trial in early 2020,
his leg still hurt, and he was able to work only part time.
Sanchez was shown a surveillance video of the incident, in
which he was able to identify himself and the man who ran him
over. Sanchez remembered that he and the man had argued, but
he could not remember what they argued about. Sanchez denied
that the video showed him reaching into his backpack during the

3 In a footnote in respondent’s brief it is noted that the
abstract of judgment is not included in the clerk’s transcript.
Within the footnote there appears to be a motion pursuant to
rules 8.155(a) and 8.340(c) of the California Rules of Court to
augment the record with the abstract. However, as this motion
does not comply with rule 8.155(a), and respondent has not
claimed to have requested a copy of the abstract from the
superior court, we deny the motion.

3
encounter with the man but said it showed him just adjusting the
strap. Sanchez denied that he had a gun or said to the man that
he had a gun and was going to shoot him, but he could not
otherwise remember what he said or did not say. Sanchez
remembered that he had $200 with him that day, and when the
hospital returned his property, the $200 was included.
Los Angeles Police Officer Brendan Flynn arrived at Jerry’s
Liquor store soon after Sanchez had been injured. He testified to
having observed tire marks on Sanchez’s abdomen and to having
recovered Sanchez’s testicle near where he lay.
Firefighter/paramedic Brad Ibanez arrived on the scene a few
minutes later finding Sanchez impaired, altered and combative.
Ibanez stabilized Sanchez and put him in restraints. He
observed that Sanchez had facial abrasions, road rash on the
right forearm, severe road rash and bruising to his abdomen, a
testicular sac rupture, and blood in his mouth.
Defendant had gone to Jerry’s Liquor store that evening
with his friend and coworker Alba Florian. Florian testified that
the two of them went there in defendant’s car to buy beer. While
there they saw a man whom they did not know (Sanchez) right
outside the door. When they came out with their beer, the man
started bothering them and appeared to be drunk. Sanchez
mostly bothered Florian, seeming to flirt, but using foul
language. Defendant told him to relax, to go away and stop
bothering her, but Sanchez ignored defendant and kept insulting
Florian. Sanchez also insulted defendant and behaved as though
he wanted to fight. Defendant and Sanchez began arguing, and
defendant, no longer calm, appeared to be about to fight Sanchez.
Florian denied that the two men physically fought or that there
was any punching or kicking. Florian tried to pull defendant

4
away, saying, “Let’s go,” and claimed she saw another man
approach, apparently to help Sanchez. Later, she testified that
the second man came after she got into defendant’s car, that
defendant followed her a short time later, and that he did not
punch or kick anyone. She claimed that as defendant walked
away, Sanchez continued to insult defendant, and that as
defendant was about to start the car, Sanchez walked in front of
it, making challenging hand gestures and preventing them from
going forward. Florian ducked down, closed her eyes, and did not
see anything until they were out of the parking lot. She began
crying and defendant told her to be quiet. They did not speak at
all after that and did not discuss the incident.
During her testimony Florian was reminded of her
interview with Detective Reyes about four months after the
incident, in which she said that just before she bent forward, she
screamed and then heard a bump. Defendant then backed up
and she shouted, “You killed him,” or something to that effect.
Defendant told her to stop it and “shut up,” and that the man
stood up. Florian told Detective Reyes that when defendant
backed up she heard a crack, she screamed, asked defendant
what happened, and begged him to stop. Defendant yanked her
hair and said, “Calm down now.” She also told Detective Reyes
that she was afraid of defendant, as she found him intimidating.
Sometime after her interview with the detective, a
coworker told defendant and Florian that the police were looking
for him, and he had seen them on television. Defendant told
Florian that he had not realized that he had run over the man
and said he was just trying to scare the man. Defendant stopped
going to work once he found out the police were looking for him.
He did not answer her calls for two or three months. When they

5
did speak months later, she told defendant that Detective Reyes
wanted to talk to him and suggested defendant comply. He
refused, saying that he was not at fault. At some point,
defendant told Florian that he was in Salt Lake City and later
that he had moved to Las Vegas.
Surveillance videos were played in court as Florian
described the action.4 She and defendant were identified as they
walked into the liquor store and back out. They are seen sitting
down as they begin drinking their beers. Sanchez, with his
backpack, is seen on the sidewalk, also drinking a beer. A man in
a blue shirt stands next to Sanchez. Another angle shows Florian
and defendant walking out of the liquor store with Sanchez
leaning against a wall at the bottom of the screen.
After awhile Sanchez is seen as he starts bothering
defendant and Florian. Defendant is seen throwing a beer bottle
at Sanchez and punching and kicking him. The man in the blue
shirt is no longer seen in the video when defendant was punching
and kicking Sanchez.
Defense evidence
Blood alcohol expert
The defense called a forensic chemist who had reviewed
Sanchez’s laboratory results from his hospital record. Sanchez’s
blood was drawn at 9:35 p.m., tested and found to have a blood
alcohol content that was high for a human being, the equivalent
of a 0.267 blood alcohol level if tested using whole blood rather
than plasma (more than three times the 0.08 percent presumed
as being impaired to drive). A 160 pound man would have fully

4 The exhibits have not been transmitted to this court for our
review. We thus summarize the action from the testimony of
Sanchez, Florian and defendant.

6
absorbed the alcohol equivalent to 11 and one-half 12-ounce, 4
percent (light) beers.
Defendant’s testimony
Defendant testified that on August 1, 2014, he had been
employed for five years as the manager of the clothing company
where he and Florian worked. Though married, defendant was
dating Florian at the time. On direct examination defendant
testified that he drove to work that day in his white Ford
Explorer SUV, and after work he gave a ride to Florian. Between
8 and 8:30 p.m., they stopped to buy beers and were sitting on the
curb in front of the liquor store drinking them when Sanchez,
who appeared to be intoxicated, approached them and asked for
money. Sanchez became hostile and cursed at them when
defendant said he did not have money, and Florian told him to go
away. Defendant then stood, faced Sanchez and told him not to
be disrespectful. Sanchez responded, “What? Do you want to
fight with me?” When Florian urged defendant to ignore Sanchez
and tried to lead him away, Sanchez responded, “What? Are you
going to hide behind a woman?” Defendant told Florian to get in
the car; and because Sanchez continued to provoke and insult
him using foul language, defendant grabbed a bottle and threw it
at Sanchez but missed him. Defendant also tried to kick Sanchez
but claimed that he did not remember making contact. When
shown portions of the surveillance video, defendant admitted that
the video showed him throwing a beer bottle at Sanchez, kicking
him once and striking him in the chest once.
Defendant also claimed that as Sanchez moved his
backpack from his back to his front, Sanchez said he was going to
kill defendant and that he had a gun in his backpack. Defendant
saw Sanchez trying to reach into the backpack, felt afraid,

7
panicked, and angry. He quickly got into his car and backed out
of his parking spot. Defendant did not see a gun but saw Sanchez
moving his hands in a challenging manner, so defendant drove
the car toward Sanchez, accelerated, and ran him over. Because
there was a wall in front of the car and no exit from the parking
lot in that direction, defendant backed up in order to get away.
He claimed that it all happened in seconds.
Defendant did not tell Florian that Sanchez had a gun or
that he threatened to kill him, explaining that she was
hysterical, crying and bent down. He denied pulling her hair,
claiming that he just put his hand on her head and told her to
calm down. When a coworker told him about the television
broadcast, defendant did not go to the police because he was
afraid they would not believe his story. He moved to Salt Lake
City for about two months, then moved to Las Vegas when his
former employer moved his business. Defendant was eventually
arrested in Las Vegas about two years later.
On cross-examination, defendant testified that Sanchez
approached him and Florian about 20 minutes after they arrived,
and Sanchez’s behavior toward Florian made defendant angry
because he was disrespecting a woman. Defendant also claimed
to be afraid of Sanchez.5 Sanchez continued to challenge him and
insult them. Defendant testified that he had no other option and
explained, “If he’s disrespecting me and he’s disrespecting me,
obviously, I had to react in some way.” In response to the
prosecutor’s question whether he had no choice but to punch and
kick a man who was insulting him, defendant said, “Because he

5 Defendant never saw two men, testifying that only one man
confronted him.

8
told me he wanted to fight.” Defendant agreed that he wanted to
fight Sanchez, because “[h]e had insulted me so many times that
it’s obvious that I had to fight him.” Defendant explained that he
threw the bottle to “shut [Sanchez] up” when he started “cussing
[him] out”; and although Sanchez was across the parking lot
when he threw it, defendant “could hear what he was saying.”
Sanchez kept on talking and making his hand motions. The
insults and challenging hand motions were “making” defendant
react in anger. Defendant then went to Sanchez and kicked him,
but when that did not quiet him, defendant punched him.
Defendant claimed Sanchez swung at him; and although Sanchez
did not connect and hit defendant, it was not defendant’s decision
to fight “with everything he was saying to me, he was trying to
provoke a fight with me and you can’t ignore that. One can’t
ignore that with someone you don’t even know.”
After defendant told Florian to get in the car, he claimed
that he got into his car and put it in reverse. Sanchez “was
already in front of the car” and waving his hands back and forth
above his head. Defendant denied that Sanchez remained where
he had left him, some distance from the car. In still photographs
of the parking lot, defendant identified both his SUV and
Sanchez, who was standing with his hands down at his side and
empty space around him. When asked whether he aimed his car
directly at Sanchez, defendant testified, “I didn’t exactly aim it.
It was rather that the person was provoking me. It was a matter
of seconds. It wasn’t that I aimed it or planned anything. It was
just a matter of seconds.” Defendant admitted that when he saw
Sanchez in front of him, he accelerated, despite knowing that it
was the opposite direction from the only exit from the parking lot.
Defendant explained that he was looking at Sanchez to see if he

9
was going to get the weapon he said he had. Sanchez was
standing still, but his hands were moving.
Defendant admitted to having run over Sanchez because
Sanchez continued to provoke him. Although defendant could not
hear what Sanchez was saying because the windows were up, he
could see that Sanchez continued to talk. Defendant agreed that
the video showed that the SUV ran completely over Sanchez’s
body with the right front tire. Defendant explained that although
he knew that he had run over Sanchez, having felt the car go over
him, defendant did not know “how the action took place.” He also
denied that he felt the tires go over Sanchez’s body and claimed
that he did not feel anything when he was going forward.
Defendant also claimed that although he knew he had hit
Sanchez, he thought Sanchez had just been pushed, causing him
to fall in front of the car, making it necessary for defendant to put
his car in reverse. However, defendant then admitted he thought
he had run over Sanchez going forward, which made him feel
that he had to flee, so he backed up in a panic. Defendant
explained that it was when he backed over Sanchez that he felt
his car going over something. Knowing he had run over Sanchez
a second time, defendant drove away but claimed he drove away
because he saw Sanchez stand up.
Defendant acknowledged that he “partly” understood that
he had done something wrong but pointed out that he was
provoked. Defendant explained that he did not worry about
Sanchez or feel bad, because Sanchez had threatened to kill
defendant. He explained that he did not stay and call the police
because the police would sometimes believe the victim more than
the person who was aggressive. Defendant later “felt partly
guilty for doing that, for, in a way, taking his life and he ruined

10
mine too.” Defendant drove away and refused to discuss the
event with Florian. He never told her that Sanchez was trying to
pull out a gun or that he had threatened to shoot defendant.

DISCUSSION
I. Alleged prosecution misconduct
Defendant contends that his conviction should be reversed
because the prosecutor engaged in prejudicial misconduct by
misstating the law during rebuttal closing argument. Turning to
defendant’s claim of self-defense, the prosecutor stated, “This is a
perfect case. Self-defense is one of those things that you have to
decide.” He continued:
“Do you think this is okay, to do what he did? I can’t
hold him responsible. The police can’t hold him
responsible. The judge can’t hold him responsible.
This is in your hands, as our members of our
community, to say, no, you’ve crossed the line with
that one. Okay? [¶] And it’s five years coming. He
thought this day was never going to come. He
thought this would all just blow over if he just
disappeared to Nevada or wherever he went. Okay?
But presumption of innocence ends now because
you’ve heard the evidence now and you have to make
a decision about what kind of conduct is going to be
okay.”
Defendant notes the phrase, “presumption of innocence
ends now,” standing alone, and claims a misstatement of the law,
as the presumption of innocence continues into deliberations
until the jury reaches a verdict. (People v. Dowdell (2014) 227
Cal.App.4th 1388, 1407-1408.) However, defendant
acknowledges that his trial counsel did not object or request an
admonition. “As a general rule a defendant may not complain on

11
appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant [requested] an
assignment of misconduct and [also] requested that the jury be
admonished to disregard the impropriety. [Citation.]
Additionally, when the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.” (People
v. Samayoa (1997) 15 Cal.4th 795, 841.)
It is clear that the trial court would have given the jury the
appropriate admonition had it been requested. During the
prosecutor’s opening summation, when defense counsel objected
to a statement, the trial court overruled the objection but
admonished the jury as follows: “[T]o the extent there is a
conflict with the law between what the lawyer is saying and the
instructions I read, it’s the instructions that control. During
arguments, the lawyers make arguments about how you should
construe things and how you should find things, but it’s up to you
to make those decisions and follow the law that I give to you.” “It
is fundamental that jurors are presumed to be intelligent and
capable of understanding and applying the court’s instructions.”
(People v. Gonzales (2011) 51 Cal.4th 894, 940.) We thus agree
with respondent that the issue is forfeited.
Defendant contends that despite counsel’s failure to object
or request an admonition, reversal is required because the failure
amounted to a denial of effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States
Constitution and article I, section 15 of the California
Constitution. (See Strickland v. Washington (1984) 466 U.S. 668,
686-688.) A defendant bears a heavy burden to demonstrate both

12
counsel error and resulting prejudice. (Id. at p. 687.) A
reviewing court may proceed directly to the issue of prejudice if it
is easier to dispose of an ineffectiveness claim on that basis.
(Ibid.; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Such is
the case here.
Defendant must affirmatively prove prejudice by
demonstrating a reasonable probability that the result of the
proceeding would have been different absent the alleged error.
(Strickland v. Washington, supra, 466 U.S. at p. 694.) “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Ibid.) Defendant attempts to show
prejudice by arguing that prejudice is shown by the jury’s finding
the allegation that the attempted murder was committed
willfully, deliberately, and with premeditation to be not true. He
argues that this not true finding demonstrates that “[t]he jury
had doubts about the prosecution’s case and may have questioned
whether [defendant] intended to kill Sanchez when he struck him
with his truck.” (Italics added.)
“A defendant must prove prejudice that is a ‘“demonstrable
reality,” not simply speculation.’” (People v. Fairbank, supra, 16
Cal.4th at p. 1241.) Defendant has failed to do so here. When
the prosecutor’s comment is viewed with the jury instructions
given, the more reasonable inference to be drawn from the jury’s
not true finding is that the jurors understood and took seriously
their roles by following the trial court’s instruction to presume
defendant innocent until satisfied that the prosecutor proved
premeditation beyond a reasonable doubt. The jury was so
instructed prior to the prosecutor having uttered the disputed
phrase. The first instruction was CALCRIM No. 200, which
included: “You must follow the law as I explain it to you, even if

13
you disagree with it. If you believe that the attorney’s comments
on the law conflict with my instructions, you must follow my
instructions.” Shortly thereafter, the trial court read CALCRIM
No. 220, which included:
“A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove
something, I mean they must prove it beyond a
reasonable doubt. [¶] Proof beyond a reasonable
doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need
not eliminate all possible doubt because everything in
life is open to some possible or imaginary doubt. [¶]
In deciding whether the People have proved their
case beyond a reasonable doubt, you must impartially
compare and consider all the evidence that was
received throughout the entire trial. Unless the
evidence proves the defendant guilty beyond a
reasonable doubt, he is entitled to an acquittal and
you must find him not guilty.”
By the time final arguments began, the jury had been
instructed no fewer than seven more times regarding the
prosecution’s burden of proof beyond a reasonable doubt: See
CALCRIM No. 601, regarding premeditation and deliberation;
CALCRIM No. 603, regarding attempted voluntary manslaughter
and heat of passion; CALCRIM No. 604, regarding imperfect self-
defense; CALCRIM No. 3145, regarding personal use of a deadly
weapon; CALCRIM No. 3160, regarding great bodily injury;
CALCRIM No. 3470, regarding self-defense and defense of
another; and CALCRIM No. 3517, regarding verdict forms.
Defendant also suggests that the not true finding as to
premeditation shows that without the prosecutor’s remark

14
regarding the presumption of innocence, at least one juror may
have believed that he acted in self-defense. More likely the jurors
found defendant guilty of attempted murder because they
believed defendant’s testimony that he acted in anger, but they
had a reasonable doubt about deliberation and premeditation.6
Defendant admitted reacting to Sanchez because he was angry
and felt disrespected, claiming that he had no other option
because “[i]f he’s disrespecting me and he’s disrespecting me,
obviously, I had to react in some way.” Defendant tried throwing
a beer bottle at Sanchez, tried kicking and punching him, but the
insults continued. Defendant admitted he ran over Sanchez
because he had been provoked by Sanchez, who was directly in
front of him waving his hands back and forth. Defendant
admitted that he ran over Sanchez a second time in order to
facilitate his escape from the scene.
We cannot agree with defendant that without the
prosecutor’s remark, the jury would have had reason to find that
defendant acted in self-defense or imperfect self-defense.
Defendant testified that he was walking away from Sanchez
trying to get into his car as soon as possible at the time he saw
Sanchez reached into his backpack, an action that Sanchez
described as adjusting the strap on his backpack, not trying to
unzip or reach into it. Since defendant failed to provide the
surveillance videos, still photographs, or any other exhibits to
this court for review, he also fails to present an adequate record
for review on appeal and to affirmatively demonstrate error. (See

6 The trial court read CALCRIM No. 601, which defines
deliberation and premeditation including “[a] decision to kill
made rashly, impulsively, or without careful consideration of the
choice and its consequences is not deliberate and premeditated.”

15
People v. Whalen (2013) 56 Cal.4th 1, 84, disapproved on another
point in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.)
Error is never presumed from a silent record. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) We thus assume that
the video and still photographs would support the jury’s rejection
of defendant’s claim of self-defense.7
We conclude that overwhelming evidence shows that if
defendant harbored any reasonable or unreasonable belief in the
need for self-defense, it ended when defendant admittedly
accelerated toward Sanchez upon seeing him standing at some
distance with his hands visible and either down at his sides or
waving in the air, and not reaching into his backpack. Any such
belief also ended when defendant admittedly backed up knowing
that he had run over Sanchez and had felt the car go over him.
We conclude that if defense counsel erred, the error was
harmless, and defendant has thus failed to demonstrate
ineffective assistance of counsel.
II. Dual use of facts to aggravate term
Defendant contends that the trial court improperly relied
on the facts underlying the enhancement allegations to impose
the high term, based on the provision in section 1170, subdivision
(b), which provides that “the court may not impose an upper term
by using the fact of any enhancement upon which sentence is
imposed under any provision of law,” and on California Rules of

7 We observe that at the sentencing hearing the court noted
there was no evidence that a gun was recovered at the scene or in
Sanchez’s backpack. The court also stated that the video did not
show anything that could be construed as Sanchez reaching for
something in the backpack.

16
Court, rule 4.420(c).8 In particular, defendant contends that the
court’s comments at sentencing indicate that it relied upon the
use of a car as a deadly weapon and upon Sanchez’s injuries in
imposing the upper term, although the court also imposed a
three-year great bodily injury enhancement under section
12022.7, subdivision (a), and a one-year enhancement for the use
of a deadly weapon pursuant to section 12022, subdivision (b)(1).
Respondent asserts that defendant has forfeited this issue
by failing to object at the sentencing hearing. Because improper
dual use is not a jurisdictional error, “[a] party in a criminal case
may not, on appeal, raise ‘claims involving the trial court’s failure
to properly make or articulate its discretionary sentencing
choices’ if the party did not object to the sentence at trial.
[Citation.] The rule applies to ‘cases in which . . . the court
purportedly erred because it double-counted a particular
sentencing factor . . . .’” (People v. Gonzalez (2003) 31 Cal.4th
745, 751, quoting People v. Scott (1994) 9 Cal.4th 331, 353.)
Defendant claims to have preserved the issue with an objection in
his sentencing memorandum to the dual use of a car as a deadly
weapon enhancement and as a factor in aggravation. However,
defendant did not object to the dual use of facts underlying the
great bodily injury enhancement. “Only a single aggravating

8 California Rules of Court, rule 4.420(c) provides: “To
comply with section 1170(b), a fact charged and found as an
enhancement may be used as a reason for imposing a particular
term only if the court has discretion to strike the punishment for
the enhancement and does so. The use of a fact of an
enhancement to impose the upper term of imprisonment is an
adequate reason for striking the additional term of
imprisonment, regardless of the effect on the total term.”

17
factor is required to impose the upper term . . . .” (People v.
Osband (1996) 13 Cal.4th 622, 728.) Thus defendant has
forfeited his challenge based upon facts relating to great bodily
injury.
Regardless, the trial court cited many facts in aggravation,
not just those supporting the two enhancements. The reviewing
court looks at whether the trial court could have based the
aggravating factor on facts other than those supporting the
enhancement, and if so, the sentence may stand. (People v.
Garcia (1995) 32 Cal.App.4th 1756, 1775.) Here, the court stated
that it had reviewed the defense sentencing memorandum and
then expressed many reasons for finding that granting probation
was not justified. The court then applied those reasons and
others to support the high term. In essence, the court expressed
the intention to impose the high term on the ground that this was
an aggravated attempted murder. The court found this case “as
serious [as] you can get in terms of charge,” not just attempted
murder but “an incredibly aggravated, violent attempted murder
with a vehicle.” Thus the court considered, more than
defendant’s use of a car as a deadly weapon to inflict great bodily
injury, but rather the extreme violence with which defendant
committed his crime.
The sentencing court may appropriately base an
aggravated term on facts surrounding the defendant’s crime that
exceed the minimum necessary to establish the offense or
enhancement. (Cf. People v. Castorena (1996) 51 Cal.App.4th
558, 561 [“‘while an element of this crime is gross negligence,
defendant’s conduct exceeded even the word gross’”].) Here, the
court acknowledged that some of the facts were already part of
the offense and the enhancement allegations, but stated that far

18
more facts were proven in this case than the minimum needed to
establish an attempted murder, an intent to kill, or great bodily
injury. “Some physical pain or damage, such as ‘[a]brasions,
lacerations, and bruising can constitute great bodily injury.’”
(People v. Quinonez (2020) 46 Cal.App.5th 457, 464.) Here, the
court listed Sanchez’s injuries depicted in photographs taken at
the hospital, such as severe bruising and scrapes from the knees
through the groin area and up through his torso, as well as the
permanently dismembered testicle, which clearly exceeded
healable abrasions, lacerations, and bruising necessary to
establish great bodily injury.
Great violence is a separate factor that may appropriately
be considered in aggravation of a violent crime, where great
violence is not an element of the crime. (See People v. Garcia
(1989) 209 Cal.App.3d 790, 794 [forcible rape]; Cal. Rules of
Court, rule 4.421(a)(1).) Here, the trial court considered the
extreme violence of defendant’s conduct, explaining that during
trial there were comments indicating that defendant ran over
Sanchez at least twice, although when viewing the surveillance
video the court perceived wheels going over him at least three
times and then dragging Sanchez for a period of time. The court
noted that at “every step of the way [defendant] chose to make
this situation worse and increase the violence.” Defendant was
the aggressor in the fight, while Sanchez appeared to be acting
defensively.
The court acknowledged that Sanchez was probably
annoying and drunk, and that he made disparaging remarks
about Florian, but “[n]one of that, in any way, justifies the
defendant’s reactions thereafter.” The trial court observed that
defendant could have left by backing out of his parking place and

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turning toward the parking lot exit adjacent to his parking space,
but he did not. Without disputing the jury’s verdict the court also
pointed out that there was sufficient evidence to support
premeditation and deliberation, which would have resulted in a
life term; thus the verdict gave defendant a significant break.
In sum, the court did not rely simply on defendant’s use of
his car as a deadly weapon or the infliction of great bodily injury
on the victim to impose the high term, as defendant claims. We
conclude that defendant forfeited at least one of his claims of dual
use, and that in any event, the trial court did not err.

DISPOSITION
The judgment is affirmed.

________________________, J.
CHAVEZ

We concur:

________________________, Acting P. J.
ASHMANN-GERST

________________________, J.
HOFFSTADT

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