Filed 9/28/20 P. v. Diaz CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
1 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; 1 (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
1 Further undesignated statutory references are to the Penal Code.
2 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
3 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,
4 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)).
5 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 2 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 3 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
2 The court imposed stayed or concurrent sentences on the remaining counts and enhancements. 3 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.)
6 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
7 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.
8 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
9 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.
10 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.
11 “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.
12 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 4 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
4 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.
13 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 5 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
5 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”].)
14 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.
15 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
16 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
17 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.