People v. Barraza
| Decision Date | 09 March 2021 |
| Docket Number | B303268 |
| Court | California Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSE ANGEL BARRAZA, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA019275)
APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Affirmed.
Janet Gusdorff, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Angel Barraza of voluntary manslaughter and found true the allegation he personally used a firearm within the meaning of Penal Code former section 12022.5, subdivision (a).1 The trial court sentenced Barraza to the upper term of 11 years, plus the upper term of five years for the firearm enhancement. Barraza appealed, arguing, among other things, the trial court committed evidentiary error and violated the prohibition in section 1170, subdivision (b), against the "dual use" of aggravating facts to impose the upper term and an enhancement. We affirmed his conviction, and without deciding the dual use issue, directed the trial court to exercise its discretion under section 12022.5 whether to strike the firearm enhancement, observing that the dual use issue would become moot if the court struck the enhancement. On remand the trial court declined to strike the enhancement.
Barraza appeals again, arguing the trial court improperly relied on the same aggravating facts to impose the upper term for manslaughter and to impose the firearm enhancement. Because Barraza did not object to the trial court's discretionary sentencing choices, however, he forfeited his argument. Therefore, we affirm.
In 1993 Barraza shot and killed Roberto Delgado at a party. Barraza fled to Mexico and was detained 22 years later while crossing the border into the United States. The People charged Barraza with murder and alleged he personally used a firearm within the meaning of former section 12022.5, subdivision (a). A jury found Barraza guilty of the lesser included offense of voluntary manslaughter and found true the allegation he used a firearm.
Before sentencing Barraza, the trial court found there were no mitigating factors. The court found, however, there were several aggravating factors: Barraza "brought a gun to a party," "shot [Delgado] at close range," and "fled." The court also stated the crime "involved some planning because [Barraza] brought a gun," "had to arm himself" with a gun, and "had to use" the gun. Finding there was no "real justification . . . for anything other than [upper] term," the trial court sentenced Barraza to the upper term of 11 years.
Regarding the firearm use allegation, the trial court selected the upper term of five years and stated "the same factors in aggravation apply." The court stated that it was aware it could not use the same aggravating facts "repeatedly," but that "there are many" aggravating factors and that "the fact that the firearm was used at close range for no apparent reason . . .justifies [the upper term] for that also." The trial court sentenced Barraza to an aggregate prison term of 16 years.2
Barraza appealed. Among various challenges to his conviction and sentence, he argued the trial court violated section 1170, subdivision (b), by using the same facts to impose the firearm enhancement and to impose the upper term on his conviction for voluntary manslaughter and that the trial court should have an opportunity to exercise its newly authorized discretion under section 12022.5 to strike the firearm enhancement.
Because we remanded for the trial court to exercise its discretion whether to strike the firearm enhancement, we did not reach the issue of whether the trial court improperly used the same fact to impose the upper term and the enhancement. Nevertheless, we observed that several of the facts the trial court relied on to impose the upper term involved firearm use and that one factor the court mentioned that did not—fleeing the jurisdiction—"is not generally an aggravating circumstance" under the California Rules of Court. We also stated that anotheraggravating factor the trial court mentioned—the crime "involved some planning"—could justify imposing the upper term and the firearm enhancement without violating section 1170, subdivision (b), but that the fact the trial court identified as indicating planning—Barraza "brought and used a gun"— again involved firearm use and came "pretty close to the dual use line." (Barraza I, supra, B283526.) We suggested: "If the court does not strike the firearm enhancement, the court will have an opportunity to clarify the reasons for its sentencing choices." (People v. Barraza (Mar. 18, 2019, B283526) [nonpub. opn.] (Barraza I).)
No one took the suggestion. At the resentencing hearing, the trial court declined to strike the firearm enhancement, stating: Counsel for Barraza did not ask the trial court to clarify the reasons for the court's sentencing choices or otherwise object the court used the same fact to impose the upper term for the manslaughter conviction and the firearm enhancement.
Counsel for Barraza, however, did ask the court to recalculate Barraza's custody credits. The court stated Barraza would need to "bring that up" with the Department of Correctionsand Rehabilitation. Counsel urged the court "to address" the issue of Barraza's custody credits, but the court again declined to do so and stated it did not have jurisdiction to review an administrative decision. The court also stated that, should the Department deny Barraza's request for additional custody credits, he "would have other remedies available to him."
Barraza appealed again.
Barraza argues the trial court erred in relying on the same fact in imposing the upper term on his voluntary manslaughter conviction and imposing the firearm enhancement under former section 12022.5. The People contend Barraza forfeited this argument by failing to object. The law and the record support the People.
As we explained in Barraza I, section 1170 prohibits a court from using the same fact to impose both the upper term on a conviction and an enhancement on that conviction. But a court may use the same fact to impose the upper term on a conviction and the upper term on an enhancement. And only a single aggravating factor is necessary to make it lawful for the trial court to impose the upper term. (Barraza I, supra, B283526; see People v. Chism (2014) 58 Cal.4th 1266, 1336; People v. Scott (1994) 9 Cal.4th 331, 350; People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182.)
As a general rule, a defendant who fails to object "to a purportedly erroneous ruling forfeits the right to challenge thatruling on appeal." (People v. Anderson (2020) 9 Cal.5th 946, 961; see People v. Trujillo (2015) 60 Cal.4th 850, 856 [].) "'[C]laims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' are subject to forfeiture, including 'cases . . . in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or to give a sufficient number of valid reasons.'" (People v. Boyce (2014) 59 Cal.4th 672, 730-731; see Trujillo, at p. 856 []; People v. Scott, supra, 9 Cal.4th at p. 353 [].)
"'The reason for [the forfeiture] rule is that "[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided."'" (People v. Sperling (2017) 12 Cal.App.5th 1094, 1101; see People v. French (2008) 43 Cal.4th 36, 46.) Although reviewing courts may excuse "'"parties for failing to raise an issue at trial where an objection would have been futile"'" (People v. Perez (2020) 9 Cal.5th 1, 7-8; accord, People v. Montes (2021) 59 Cal.App.5th 1107, 1119), the futility exception to the forfeiture rule generally applies in "extreme case[s]" and "unusual circumstances" (People v. Riel (2000) 22 Cal.4th 1153, 1212, italics omitted; accord, People v. Wilson (2005) 36 Cal.4th 309, 337, fn. 6; see People v. Lima (2020) 49 Cal.App.5th 523, 534 [...
To continue reading
Request your trial