People v. Vigil CA2/4

Filed 12/16/20 P. v. Vigil CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B298482

Plaintiff and Respondent, Los Angeles County Super. Ct. No. KA117413 v.

AARON VIGIL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed in part, remanded with directions. William J. Capriola, 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 Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Aaron Vigil of mayhem, and the trial court sentenced him to the upper term. On appeal, Vigil contends the case must be remanded for resentencing because the court prejudicially erred by relying on several improper aggravating factors in imposing the upper term. We agree with Vigil and remand the case for resentencing. In all other respects, the judgment is affirmed.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an information charging Vigil with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count one)1 and mayhem (§ 203; count two). The information alleged Vigil personally inflicted great bodily injury during the commission of both counts (§ 12022.7, subd. (a)) and personally used a deadly weapon during the commission of count two (§ 12022, subd. (b)(1)). The information also alleged Vigil sustained a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court dismissed the great bodily injury allegation attached to count two. The jury found Vigil guilty on both counts. The jury also found he personally inflicted great bodily injury during the commission of count one and personally used a deadly weapon in the commission of count two. In a bifurcated proceeding, Vigil admitted the prior conviction allegations.