Filed 8/31/26 P. v. Sairafe CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent, G064922
v. (Super. Ct. No. 24WF1131)
NOURAS JILAL SAIRAFE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christine Y. Friedman and Arlyn Escalante, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found appellant Nouras Jilal Sairafe guilty of unlawfully driving a vehicle. (Veh. Code, § 10851, subd. (a).)1 In a bifurcated proceeding, the trial court found true that Sairafe had suffered numerous prior convictions (Cal. Rules of Court, rule 4.421(b)(2)), had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)), and had performed unsatisfactorily on probation (Cal. Rules of Court, rule 4.421(b)(5)). The court also found true that Sairafe had been convicted of two felonies and numerous misdemeanors.
The trial court sentenced Sairafe to four years to be served in county jail. The court suspended fines and fees pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. Sairafe timely appealed.
On appeal, Sairafe contends (1) there was insufficient evidence to support his conviction, (2) the trial court violated his constitutional rights to due process and a fair trial by failing to address the jury’s exposure to prejudicial matters, and (3) the trial court erred in failing to consider a mitigating factor in accordance with the provisions of Senate Bill 567 (2021- 2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (SB 567). We find no error and affirm.
1 All further statutory references are to the Vehicle Code unless
otherwise indicated.
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FACTS
In February 2024, M.G. borrowed his uncle’s vehicle to go to the gym. When M.G. arrived at the gym, he put the vehicle keys inside his bag and placed the bag inside an unlocked locker. After he finished exercising, he returned to the locker and realized the vehicle keys were missing. M.G. then went to the gym parking lot and saw his uncle’s vehicle was missing. Immediately after, M.G. called the police and his uncle.
Later that afternoon, a Los Alamitos Police Officer was dispatched to an area where a license plate reader had identified a stolen vehicle. The officer began monitoring traffic to locate the stolen vehicle. When the officer approached a four-way stop, he recognized a vehicle matching the stolen vehicle description. The officer made eye contact with the driver, Sairafe, who made an abrupt left turn past the officer’s vehicle. The officer made a U-turn to get behind the vehicle and immediately began to follow it. After a short time, Sairafe pulled the vehicle over and stuck his hands out of the vehicle window. The officer approached the vehicle and conducted a felony car stop during which he pointed his gun at Sairafe. He then ordered Sairafe out of the vehicle.
After the officer placed Sairafe under arrest, he examined the vehicle. The front license plate and hubcaps had been removed and were inside the vehicle. He also observed groceries in the backseat of the vehicle.
The officer spoke to Sairafe about the vehicle and recorded the conversation with a digital audio recorder. The officer asked Sairafe where he got the vehicle. Sairafe responded: “It’s in, uh, I saw my home. My, my friend was, it’s a chick. It’s, it’s like a trifecta.” The officer asked Sairafe what he meant, and Sairafe said: “I left her at, I left her at the store right now. And I
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saw, I was like, no way. She got a car. And I mean, that’s what she did. So I just pulled over.”
The officer indicated he was having trouble understanding and asked again where Sairafe got the vehicle. Sairafe responded: “From her? It’s her car.” The officer asked if it was “her” vehicle, and Sairafe confirmed. When the officer asked what city he was in when he got the vehicle, Sairafe said Long Beach. When the officer asked how long ago Sairafe got the vehicle, Sairafe said “since this morning.” Sairafe asked whether the vehicle was stolen, and the officer confirmed it was.
The officer then told Sairafe he had found a gym bag in the vehicle that belonged to someone named Abdul Aziz Alcatani and asked Sairafe who that was. Sairafe said it belonged to “her little friend.” Sairafe denied knowing the vehicle was stolen and said he pulled over before the officer turned his lights on because he “knew she called, but I was leaving the [Ralph’s]” Sairafe stated “she” was not his girlfriend, but she was “a chick, like a friend.” Sairafe explained, “over the last couple days,” “she was like, [expletive] you,” so he “left the key in the middle of you just [expletive].” Sairafe then said she “always tell[s] [him] to eat, come back and cool off.” Sairafe further stated she was “[m]aking a scene” so he “took off” and was going to call her back.
Later in the conversation, Sairafe stated the vehicle belonged to someone named “Michelle.” He did not know her last name.2 When the officer told Sairafe the person who had reported the vehicle was a “dude,” Sairafe
2 The officer never attempted to contact “Michelle” because he
had no information about her.
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said it was “Javi.” Sairafe said Javi was Michelle’s “little whatever he is.” Sairafe stated he did not think Javi knew who he was. Sairafe said he was “the guy . . . on the side.”
An August 2024 complaint charged Sairafe with driving or taking a vehicle that was not his own (Veh. Code §10851, subd. (a)) and possession of a controlled substance (Health & Saf. Code §11350, subd. (a)).
At trial, M.G.’s uncle testified he had only given M.G. permission to drive his vehicle. He did not know any Michelle who would be driving a vehicle, nor was he dating or in any kind of relationship with anyone named Michelle at the time he lent M.G. his vehicle. M.G.’s uncle did not know Sairafe, nor had he given Sairafe permission to drive his vehicle.
The jury convicted Sairafe of unlawful driving of a vehicle (§10851, subd. (a)). In a bifurcated trial, the trial court found Sairafe had suffered numerous prior convictions, had served a prior prison term, and had performed unsatisfactorily on probation. The court thus sentenced Sairafe to the upper term of four years in county jail. Sairafe timely appealed.
DISCUSSION
I.
SUFFICIENCY OF THE EVIDENCE Sairafe argues insufficient evidence supports his conviction for driving without consent because there was no evidence he had the specific intent to deprive the owner of possession. We conclude the evidence was sufficient and affirm the conviction. A. Relevant Law and Standard of Review In People v. Lara (2019) 6 Cal.5th 1128, 1135 (Lara), the court explained section 10851 subdivision (a), “prohibits taking or driving a vehicle
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without the owner’s consent and with the intent to temporarily or permanently deprive the owner of title or possession, [and] can be violated by a range of conduct, only some of which constitutes theft.” (See § 10851, subd. (a).)
A theft-based violation involves an unlawful taking, which “may be accomplished by driving the vehicle away.” (People v. Garza (2005) 35 Cal.4th 866, 871.) This is distinguished from a posttheft driving violation, which “consists of driving a vehicle without the owner’s consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a ‘substantial break’ between the taking and the driving, posttheft driving may give rise to a conviction under . . . section 10851 distinct from any liability for vehicle theft.” (People v. Page (2017) 3 Cal.5th 1175, 1188–1189 (Page).)
Unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) is an “alternative felony misdemeanor[ ]” (Lara, supra, 6 Cal.5th at p. 1131)—that is, “a ‘wobbler’ offense that may be punished as either a felony or a misdemeanor.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 853.) “While a theft-based violation . . . may be punished as a felony only if the vehicle is shown to have been worth over $950, a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value.” (Lara, supra, at p. 1136, fn. omitted; see also Pen. Code, § 490.2, subd. (a).) B. Standard of Review In evaluating a challenge to the sufficiency of the evidence, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which
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is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We “presume[ ] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) C. Analysis Sairafe first argues insufficient evidence supports a felony theft conviction under section 10851 because the trial court did not instruct the jury that it had to find the value of the vehicle was more than $950. As noted above, section 10851 can be violated in one of two ways: (1) an unlawful taking of a vehicle (i.e. vehicle theft), or (2) unlawful posttheft driving of a vehicle. (§ 10851.) To find a defendant liable under section 10851 on a theory of felony vehicle theft, the People are required to prove the stolen vehicle was worth more than $950, and that it was taken with the intent to permanently deprive the owner of its possession. (Page, supra, 3 Cal.5th 1175 at pp. 1187– 1188 (Italics added).) On the other hand, “‘“unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under section 10851 [, subdivision] (a) for posttheft driving is not a theft conviction”’” (Lara, supra, at p. 1136), and “a violation committed by posttheft driving may be charged and sentenced as a felony regardless of value.” (Ibid., fn. omitted). Here, the People argued only an unlawful driving theory to the jury and explicitly explained it was not charging Sairafe with unlawful taking of the vehicle. Additionally, the verdict form restricted the theory of Sairafe’s guilt to “unlawful driving.” Because the jury convicted Sairafe of the unlawful
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driving of a vehicle, not a theft conviction, it was not required to find the vehicle was worth more than $950.
Second, Sairafe argues the evidence showing he had the specific intent to deprive the vehicle owner of possession or title to the vehicle was all speculative. “‘Specific intent to deprive the owner of possession of his [vehicle] may be inferred from all the facts and circumstances of the . . . case.’” (People v. Green (1995) 34 Cal.App.4th 165, 181 (Green).) “[C]ircumstantial evidence is as sufficient as direct evidence to support a conviction.” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The jury is entitled to “infer [the] defendant’s motives based upon the totality of the evidence presented.” (People v. Chubbuck (2019) 43 Cal.App.5th 1, 11, fn. omitted.) Here, Sairafe was driving and in possession of the vehicle hours after it had been reported stolen. M.G.’s uncle testified he had only given M.G. permission to drive his car the day it was stolen. Additionally, M.G.’s uncle neither gave Sairafe permission to drive the vehicle, nor did he know him. Moreover, Sairafe said he and Michelle obtained the vehicle in Long Beach, the city where the vehicle was stolen. Based on these circumstances, the jury could reasonably infer that Sairafe possessed the specific intent of depriving the vehicle owner of possession or title to the vehicle.
Third, Sairafe argues stopping the vehicle, even though the officer had not activated the siren or lights, and putting both hands out the window indicated no consciousness of guilt. He also argues his statement to the officer explaining his possession of the vehicle was true. We agree with Sairafe that these factors might have been favorable to his case if the jury found them to be true. However, Sairafe presented the evidence and argument set forth above, but the jury rejected it.
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Fourth, Sairafe contends the officer failed to properly question M.G’s uncle or investigate Sairafe’s statement. According to Sairafe, these questions and investigation could have uncovered evidence that the woman he borrowed the vehicle from, “Michelle,” went by another name, was someone with whom M.G.’s uncle was romantically involved, and who had ongoing permission to drive the vehicle. Sairafe’s arguments miss the mark. Emphasizing what law enforcement failed to do does not determine whether the evidence before us is substantial in establishing the two elements of section 10851 beyond a reasonable doubt. Our Supreme Court has offered that the reviewing court’s task in evaluating the sufficiency of the evidence is not to weigh the evidence to determine the most likely interpretation, but rather, “view the evidence and the reasonable inferences therefrom in the light most favorable to the jury’s determination, taking at face value evidence that is not inherently improbable, and presuming the existence of every fact reasonably deduced from that evidence.” (People v. Navarro (2021) 12 Cal.5th 285, 306–307.) ““‘[I]f the circumstances reasonably justify the [conviction], the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination.’”” (Green, supra, 34 Cal.App.4th at p. 180.)
Fifth, Sairafe argues the evidence shows he had the intent to deprive the vehicle owner of possession only temporarily. This argument fails because, as noted above, to establish a violation of section 10851, a defendant must have the specific intent to “permanently or temporarily deprive the owner of title or possession.’” (Green, supra, 34 Cal.App.4th at p. 180, italics added.)
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Finally, Sairafe contends there was no evidence he had knowledge the vehicle was stolen. “[K]nowledge that the vehicle was stolen is not an element of the offense” but it is “one of various alternative factors evidencing an intent to deprive the owner of title and possession.” (Green, supra, 34 Cal.App.4th at p. 180.) However, as we have described above, substantial evidence supports a conviction under section 10851.
For the reasons discussed above, we conclude that the jury’s judgment here was rational and supported by substantial evidence.
III.
ARRESTING OFFICER’S TESTIMONY Sairafe next alleges the trial court violated his constitutional due process rights by failing to prevent the arresting officer from testifying about his personal opinion and speculation. Sairafe contends the officer’s testimony usurped the function of the jury in relation to the gang enhancements. A. Relevant Law and Standard of Review “Witnesses must ordinarily testify to facts, leaving the drawing of inferences or conclusions to the jury or court.” (Froomer v. Drollinger (1962) 201 Cal.App.2d 90, 98.) A police officer, however, may give a lay opinion about inferences he or she drew from observed facts. (People v. Navarette (2003) 30 Cal.4th 458, 497.)
“[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439; Estelle v. McGuire (1991) 502 U.S. 62, 70.) “‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even
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then, the evidence must “be of such quality as necessarily prevents a fair trial.”’” (People v. Albarran (2007) 149 Cal.App.4th 214, 229.)
A trial court’s evidentiary rulings during trial are reviewed for an abuse of discretion, and “an abuse of discretion occurs when the trial court makes an error of law.” (People v. Yates (2018) 25 Cal.App.5th 474, 484–485.) A court’s ruling “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10; see Cal. Const., art. VI, § 13.) A “‘miscarriage of justice’” is shown where it appears “‘reasonably probable’” that the appellant would have achieved a more favorable result in the absence of error. (People v. Watson (1956) 46 Cal.2d 818, 836.) B. Analysis 1. Felony Car Stop Testimony Sairafe first contends the trial court erred in allowing the officer to testify that he believed Sairafe was dangerous and violent. In support Sairafe points to the following testimony:
“[Prosector]: So when you do a felony car stop, you will have guns pointed and order the individual out of the car with guns pointed? “[Officer]: That’s correct. “[Prosecutor]: And is that common to do in calls like the ones you responded to? “[Officer]: Yes, it is. “[Prosecutor]: So that’s standard operating procedure to do? “[Officer]: Yes, it is. “[Prosecutor]: And that was for, you said, potential officer safety?
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“[Officer]: That’s correct.” Sairafe misrepresents the record in stating the trial court allowed the officer to testify he believed Sairafe was dangerous and violent. The cited testimony did not focus on the specific interaction the officer had with Sairafe. Rather, the officer testified about his general practice when conducting felony car stops. In any event, Sairafe admits he did not object to the above line of questioning. Thus, he has forfeited this issue. (People v. Jasso (2025) 17 Cal.5th 646, 674 (Jasso), citing People v. Dykes (2009) 46 Cal.4th 731, 756 [“[N]umerous decisions by this court have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal”].)
2. Hubcap and License Plate Testimony Sairafe next points to a portion of the officer’s testimony about the removal of the stolen vehicle’s hubcaps and front license plate. Sairafe contends the testimony was, “in essence,” that he was guilty of theft since he was the sole occupant of the vehicle, and the hubcaps were not on the wheels. However, Sairafe recognizes he objected to this testimony and the trial court sustained the objection.
Generally, we presume that the jury followed a court’s instructions and admonitions, thereby avoiding prejudice to the defendant. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 574; People v. Riggs (2008) 44 Cal.4th 248, 299; People v. Valdez (2011) 201 Cal.App.4th 1429, 1437.) “‘It is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions.”’” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404; see also NBC
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Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224 [presumption that admonitions cure improprieties “can be overcome only in exceptional circumstances”].) Whether “exceptional circumstances” exist “depends upon the facts in each case.” (People v. Allen (1978) 77 Cal.App.3d 924, 935.)
Here, immediately after the trial court sustained Sairafe’s objection, it instructed the jury to disregard the stricken answer. Then, prior to deliberations, the court instructed the jury with CALCRIM No. 104, which told the jurors to disregard any testimony stricken from the record and not to consider that testimony for any purpose. Based on our review, we have no reason to believe the jurors did not abide by the admonition and follow the instructions.
3. “Changed Story” Testimony Sairafe next points to the officer’s testimony wherein he opined Sairafe changed his story about who the registered owner of the vehicle was. Like with the officer’s testimony about the hubcaps, Sairafe objected to this testimony. The trial court sustained the objection and struck the answer. Again, we have no reason to believe the jurors did not follow the court’s instructions.
Saraife also cites the People’s closing statement, where the People argued Sairafe “changed his story” and was “changing his story” about how he allegedly knew M.G.’s uncle. Again, Sairafe misstates the record. In its closing, the People did not refer to the officer’s testimony the trial court had struck. Instead, the People cited the statements Sairafe had made during his recorded conversation with the officer.
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4. Testimony about Arrest Sairafe also argues the trial court improperly allowed the officer to testify about his personal belief in Sairafe’s guilt. In support, Sairafe cites the following line of questioning between the prosecutor and the officer:
“[Prosecutor]: [Y]ou ultimately arrested and charged [Sairafe] or sought to charge him with a crime? “[Officer]: Yes, I did. “[Prosecutor]: What was based on that? “[Officer]: That was based on me finding him as the driver and sole occupant of a reported stolen vehicle. “[Prosecutor]: Did you take his actions before he pulled over into consideration? “[Officer]: Yes, I did.”
At this point, Sairafe’s attorney objected on relevance grounds.
The trial court sustained the objection and struck the answer. After a discussion in chambers where the prosecutor explained the rationale behind its questioning and why it was relevant, the court again stated it would sustain Sairafe’s objection. The court then struck the question regarding whether the officer took Sairafe’s actions before he pulled him over into consideration before arresting him. The record thus shows Sairafe’s argument on appeal, that the court allowed the officer to testify about his personal opinion of Sairafe’s guilt, is not supported by the record.
5. Testimony about Groceries Sairafe contends the trial court improperly allowed the officer to give opinion-based testimony about the groceries found in the back of the vehicle. This argument also is not supported by the record.
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When going over the topic of the groceries found in the vehicle, the prosecutor asked the officer: “Based on your observations, were you able to get any indication on where those groceries were from?” (Italics added.) The officer responded: “They were from a 7-Eleven.” When the prosecutor asked how the officer knew that, the officer responded the groceries were “stored inside of a handbasket that had 7-Eleven embossed on the side of it.” The officer also explained he did not see any Ralph’s grocery bags. During cross-examination, the officer testified some of the groceries appeared to be branded items that said “7-Eleven” on them. Based on the record, it appears the officer testified about what he observed, not his opinion on where the groceries came from. Regardless, Sairafe admits he did not object to this testimony, and thus, he has forfeited this argument on appeal. (Jasso, supra, 17 Cal.5th at p. 674.)
6. Cumulative Error Lastly, Sairafe argues the trial court’s errors cumulatively led to an unfair trial. However, we have found no errors, and therefore “there is no prejudice to cumulate.” (People v. Jimenez (2019) 35 Cal.App.5th 373, 391.)
IV.
SENTENCING
Sairafe contends the trial court erred in imposing the upper term sentence. We disagree. A. Relevant Law and Standard of Review In 2021, the Legislature approved SB 567, which made significant amendments to the determinate sentencing law under Penal Code section 1170, subdivision (b). “Under this change in law, a trial court ‘may impose a sentence exceeding the middle term only when there are
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circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.’” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038, fn. 10.) Relatedly, Penal Code section 1170, subdivision (b)(6) now provides: “[U]nless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense: [¶] The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
The California Rules of Court, which provide guidance to courts in imposing a sentence, were also amended to conform to the new legislation. Rule 4.420(d) now provides, in relevant part: “In selecting between the middle and lower terms of imprisonment, the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The court may consider factors in aggravation and mitigation, whether or not the factors have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial.” (Italics added.) Consistent with this rule, this court recently held that the imposition of the middle term does not require aggravating factors to be proven beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466. (People v. Hilburn (2023) 93 Cal.App.5th 189, 204.)
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A trial court’s sentencing decisions are reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371.) B. Analysis 1. Factor in Mitigation Sairafe first argues the trial court failed to consider a mitigating factor under California Rules of Court, rule 4.423(a)(6). Specifically, Sairafe contends the court failed to consider that he intentionally avoided harm to any person or damage to property when he followed traffic laws, pulled over before the officer activated his lights or sirens, and kept his hands outside of the vehicle as instructed until backup officers arrived. Again, Sairafe mistates the record.
The record shows the trial court carefully examined and considered the circumstances of the crime and determined they were not factors in aggravation. The court stated Sairafe’s crime did not involve great violence, great bodily harm, or the threat of bodily harm. Moreover, the court determined the crime did not disclose a high degree of cruelty, viscousness, or callousness, and did not involve the use of a weapon. Sairafe compares his circumstances to those in People v. Guerrero (2022) 76 Cal.App.5th 329 (Guerrero), where the trial court did not properly consider youth factors. (Id. at p. 336.) Guerrero, is distinguishable because, unlike the case at hand, there the extent of the trial court’s consideration was stating the defendant’s age at the time of the offense and nothing else. (Id.at p. 337.)
2. Circumstances in Aggravation Sairafe next argues the trial court improperly relied exclusively on the circumstances in aggravation related to him instead of those related to the crime. In support, Sairafe relies on Penal Code section 1170, subdivision
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(b)(2), which states “The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. . . .” Moreover, Sairafe argues subdivision (b)(3) of the statute does not indicate the court could consider his prior convictions in imposing more than a middle term. Penal Code section 1170, subdivision (b)(3) states “Notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. . . .”
In sentencing Sairafe to the upper term, the trial court explained it relied on Sairafe’s significant prior record not on the current charge. The court determined the factors in aggravation were Sairafe’s numerous prior criminal convictions as an adult (Cal. Rules of Court, rule 4.421(b)(2)), his prior prison term (Cal. Rules of Court, rule 4.421(b)(3)), and his unsatisfactory prior performance on probation. (Cal. Rules of Court, rule 4.421(b)(5).) The court concluded none of the factors in mitigation applied. (Cal. Rules of Court, rule 4.423(b).) In balancing the aggravating and mitigating factors, the court sentenced Sairafe to the upper term of imprisonment of four years in county jail.
In People v. Gonzalez 118 Cal.App.5th 926, 933, the defendant made the same argument Sairafe makes now. He argued “[Penal Code] section 1170, subdivision (b)(2) ‘sets a threshold requirement which must be met before the upper term becomes an available option.’ Thereafter, ‘[i]f all
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three terms are available, the court can consider prior convictions in making its decision; if the only two sentencing options are the middle and lower terms, the court can use prior convictions in selecting between the two.’” (Gonzalez at p. 933, fn. omitted.) Like the Gonzalez court, “[w]e disagree with [Sairafe]’s interpretation of [Penal Code] section 1170 and therefore reject this argument. As we have already stated, subdivision (b)(3) provides: ‘Notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.” (Italics added.) ‘[N]otwithstanding’ means ‘[d]espite; in spite of.’ (Black’s Law Dict. (11th ed. 2019) p. 1281.) Thus, by its plain language, Penal Code section 1170, subdivision (b)(3) applies, despite the limitations set forth in Penal Code section 1170, subdivision (b)(1) and (2), and authorizes a court to impose an upper-term sentence based on a defendant’s prior convictions. (Gonzalez at p. 933.)
DISPOSITION
The judgment is affirmed.
DELANEY, J.
WE CONCUR:
MOTOIKE, P. J.
MOORE, J.