Filed 8/31/17 P. v. Diaz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Allison V. Hawley and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Santo Diaz pleaded guilty to voluntary manslaughter of Melanie V. and Edgar S. (Pen. Code,[1] § 192, subd. (a); counts 1, 2) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b); counts 3, 4). He admitted the truth of allegations that he committed the manslaughters while armed with a firearm (§ 12022, subd. (a)(1)), and committed all of the felonies for the benefit of a criminal street gang

(§ 186.22, subd. (b)(1)). Diaz agreed to be sentenced to a prison term in the range of 28 to 44 years. The court ultimately sentenced him to 39 years in prison. He contends the court abused its discretion and it should have sentenced him to a lower prison term. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The background facts are taken from the probation report. On the night of March 3, 2013, four teenagers were in a park in Oceanside, California that was claimed as one gang's territory when rival gang members shot them multiple times at close range. Melanie V. and Edgar S. died at the scene, and David G. and David R. survived. David G. had surgery to remove some bullets from his body, but two bullets remain lodged in his head. He stayed in the hospital for about one month after the shooting. At one point, the entire right side of his body was paralyzed. David R. spent three or four days in the hospital without being operated on, and two bullets were left inside his head. He has ongoing pain in his shoulder and numbness in his leg.

A witness told Oceanside Police Department detectives that the night before the shootings, Diaz and some gang members were armed with "a 9[-millimeter] hand gun, a .22[-caliber] rifle with a scope on it, and possibly a .380[-caliber] handgun." That witness saw Diaz and his companions preparing to commit the crimes and return after the shooting. They were bragging about "blasting" the victims, and saying that they would "go back and blast them again."

Based on the detectives' investigations, the People charged Diaz along with Kevin Brizuela, Martin Melendrez, and Michael Zurita with murder of Melanie V. and Edgar S. (§ 187, subd. (a); counts 1, 2) and attempted murder of David G. and David R. (§§ 187, subd. (a), 664; counts 3, 4.). As to the murder charges, the People alleged the codefendants committed the felony armed with firearms and proximately caused great bodily injury and death to a person (§ 12022.53, subds. (d), (e)(1)), and that the codefendants had committed more than one murder as a special circumstance (§ 190.2, subd. (a)(3)); as to all counts, it was alleged the codefendants committed the felonies for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).[2]

Following trial on these charges, the jury found Diaz not guilty of first degree murder on counts 1 and 2. However, it was unable to reach a verdict regarding second degree murder or the remaining counts. The court therefore declared a mistrial and, on the prosecutor's motion, dismissed the special circumstance allegation.

In Diaz's sentencing brief, he argued for a 28-year prison term on grounds that he was not the shooter and was not armed during the incident; he was not involved in the planning of the shooting; he did not personally inflict injury on the victims; he participated in the crime under coercion or duress; and he cooperated with law enforcement to his own detriment, exposing himself to attack by his fellow gang members. Among the mitigation factors Diaz adduced was that at the time of the incident he was a "19-year old who grew up within the gang territory, attended elementary, middle and high school with fellow gang members, hung out and partied with them." Diaz claimed he had expressed remorse for the incident and was no longer a danger to others, having spent time in prison and learned the errors of gang life. He argued he would be in a better position to work and pay restitution if he were released earlier. He also pointed out that the other defendants received lower sentences, and thus the court could achieve uniformity in sentencing by imposing a 28-year prison term.

The People argued for a 44-year prison term on grounds it would deter Diaz and others from future violent criminal behavior. The People denied any factors in mitigation applied, claiming instead that Diaz and his fellow gang members "planned and instigated this attack and did not operate under any form of 'great provocation, coercion or duress.' " The People pointed to Diaz's juvenile criminal record showing that he had committed acts of violence using weapons. As other factors in aggravation, the People argued that "the crime involved great violence, great bodily harm, and with a high degree of cruelty, viciousness and callousness; [Diaz] was armed with or used a weapon at the time of the commission of the crime; the victims were particularly vulnerable in this close range ambush-style assault; [Diaz] unlawfully dissuaded a witness from testifying or in any other way illegally interfered with the judicial process; and the manner in which the crime was carried out indicates planning, sophistication or professionalism." (Citations omitted.)

At the sentencing hearing, the court stated: "I do think that the agreement struck between the parties was a fair and just one, reflecting the effort that has been put in from both sides and appropriately capturing a range for the court to consider that would attempt to address Mr. Diaz's role in this matter." The court pointed out, "for the reasons stated in the probation report and that this court agrees with, this was an aggravated crime, these victims were particularly vulnerable, [and the crime was] a senseless act of violence [committed] in the early . . . hours of the evening." As to count 2, the court stated it involved a separate victim "and this is really the only—the only pause the court has given in fluctuating between do I pick an upper term again and run it consecutive, or do I pick the middle term and run it consecutive. And after considering everything, I am going to pick the middle term."

The court sentenced Diaz to 39 years as follows: on count 1, the upper term of 11 years plus 11 years for the gun and gang enhancements; on count 2, the midterm of six years plus three years eight months on the enhancements; on count 3, the midterm of two years plus one year eight months on the gang enhancement; on count 4, two years, which is one-third the midterm of six years, plus one year eight months for the gang enhancement.

DISCUSSION

Diaz contends the court abused its discretion by sentencing him to the upper term on one voluntary manslaughter count and the midterm on the other voluntary manslaughter count because an analysis of the sentencing criteria under the California Rules of Court "weighed overwhelmingly in favor of mitigation of sentence. Thus the mid-term or low-term sentences should have been imposed on these counts."

We review the trial court's decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion only if it "relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.) " '[U]nless the record affirmatively indicates otherwise, the trial court is deemed to have considered all relevant criteria, including any mitigating factors.' " (People v. King (2010) 183 Cal.App.4th 1281, 1322.) Weighing aggravating and mitigating factors "involves a flexible quantitative and qualitative analysis, not a rigid numerical approach." (People v. Thornton (1985) 167 Cal.App.3d 72, 77.)

An upper term sentence may be based upon any aggravating circumstance that the court deems significant or any other circumstance, so long as it is " 'reasonably related to the decision being made.' " (People v. Sandoval, supra, 41 Cal.4th at p. 848, quoting California Rules of Court, rule 4.408(a).) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v. Lai (2006) 138 Cal.App.4th 1227, 1258-1259.)

Here, the trial court exercised its sentencing discretion and thoroughly considered the sentencing factors. It discussed its reasons for imposing the upper term for count 1; specifically, the victims were vulnerable and the crime involved senseless acts of violence. A single valid factor is enough to justify imposition of an aggravated term. Moreover, a trial court may minimize or even entirely disregard mitigating factors without stating its reasons. (People v. Salazar (1983) 144 Cal.App.3d 799, 813.) We discern no abuse of discretion. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.)

In any event, Diaz freely and voluntarily agreed to the plea bargain after full advisement of his constitutional rights, and the People in return dismissed certain charges against him. The principles applicable to enforcement of plea agreements are well-established. As the California Supreme Court explained in People v. Segura (2008) 44 Cal.4th 921 (Segura), "the process of plea negotiation 'contemplates an agreement negotiated by the People and the defendant and approved by the court.' " (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West (1970) 3 Cal.3d 595, 604-608.) Under this procedure the defendant agrees to plead guilty (or no contest) in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged. (West, supra, 3 Cal.3d at p. 604.) This more lenient disposition of the charges is secured in part by prosecutorial consent to the imposition of such clement punishment (§ 1192.5), by the People's acceptance of a plea to a lesser offense than that charged, either in degree (§§ 1192.1, 1192.2) or kind (West, supra, 3 Cal.3d at p. 608), or by the prosecutor's dismissal of one or more counts of a multi-count indictment or information. Judicial approval is an essential condition precedent to the effectiveness of the "bargain" worked out by the defense and prosecution. (§§ 1192.1, 1192.2, 1192.4, 1192.5; People v. West, supra, 3 Cal.3d at

pp. 607-608.) But implicit in all of this is a process of " 'bargaining' between the adverse parties to the case—the People represented by the prosecutor on one side, the defendant represented by his counsel on the other—which bargaining results in an agreement between them.' " (Segura, supra, 44 Cal.4th at pp. 929-930.)

"[A] 'negotiated plea agreement is a form of contract.' " Thus "[a]cceptance of the agreement binds the court and the parties to the agreement. [Citations.] ' "When a guilty plea [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement." ' [Citations.] [¶] "For its part, of course, the trial court may decide not to approve the terms of a plea agreement negotiated by the parties. [Citation.] If the court does not believe the agreed-upon disposition is fair, the court 'need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.' " (Segura, supra, 44 Cal.4th at pp. 930-931, fn. omitted.)

Here, the court selected the sentence after fully considering the probation report, which set forth Diaz's prior history and the circumstances of the present offenses. The sentence is statutorily authorized, within the stipulated range of punishment set by the plea bargain, and a proper exercise of the court's discretion.

DISPOSITION

The judgment is affirmed

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.