People v. Chavez CA4/1

Filed 11/14/24 P. v. Chavez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083051

Plaintiff and Respondent,

v. (Super. Ct. No. SCD296747)

ABRAHAM THOMAS CHAVEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed. Bruce L. Kotler, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Alana R. Butler, and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION A jury convicted Abraham Thomas Chavez of (1) assault with a firearm, with true findings on allegations he personally inflicted great bodily injury

and personally used a firearm upon the victim (Pen. Code, §§ 245, subd. (a)(2), 12022.7(a), 12022.5(a); count 1); and (2) assault with a deadly weapon (§ 245(a)(1); count 2). Chavez admitted the aggravating factors that (1) he had served a prior prison term and (2) his prior performance on probation, mandatory supervision, and parole was unsatisfactory. Relevant here, the trial court sentenced Chavez to the upper prison term of four years on count 1. On appeal, Chavez contends that, under Penal Code section 1170(b)(5) and the California Rules of Court, rule 4.420(i), the trial court: (1) failed to adequately state on the record the facts and reasons justifying its imposition of the upper term on count 1, and (2) to the extent the court provided reasons, they were either “not true factors in aggravation” or factors violating “the prohibition on dual use of facts.” The People disagree, primarily contending Chavez’s claim is forfeited by his failure to raise these issues during sentencing. Alternatively, the People assert the trial court did state valid facts and reasons justifying the upper term and any error was harmless. Resolving this matter by memorandum opinion (see People v. Garcia (2002) 97 Cal.App.4th 847), we conclude Chavez forfeited his claim and, regardless, any error was not prejudicial. Accordingly, we affirm. I. We first address forfeiture. When sentencing issues arise, it is the responsibility of the defendant or their counsel to bring the issues to the trial court’s attention; otherwise, they generally are forfeited. (People v. Neal (1993) 19 Cal.App.4th 1114, 1118.) This is because, as our Supreme Court has stated, “complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on