People v. Diaz CA2/6

Filed 6/21/21 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B302784 (Super. Ct. No. 2015039117) Plaintiff and Respondent, (Ventura County)

v.

GUSTAVO GUZMAN DIAZ,

Defendant and Appellant.

Gustavo Guzman Diaz appeals from the judgment after the jury convicted him of attempted murder with premeditation and deliberation (count 1, Pen. Code,1 §§ 664/187, subd. (a)), kidnapping (count 2, § 207, subd. (a)), assault with a deadly weapon (count 3, § 245, subd. (a)(1)), criminal threats (count 4, § 422), and corporal injury to a spouse (count 5, § 273.5, subd. (a)), and found true allegations that he used a deadly weapon (§ 12022, subd. (b)(1)) and caused great bodily injury

1 All subsequent undesignated statutory references are to the Penal Code.

(§ 12022.7, subd. (e)). The trial court sentenced Diaz to an indeterminate sentence of seven years to life in state prison, and a determinate prison sentence of 16 years, four months. Diaz contends: (1) the evidence was insufficient that the attempted murder was willful, deliberate, and premeditated, (2) the trial court erred in permitting testimony of an incompetent witness, (3) counsel rendered ineffective assistance, and (4) the sentences for criminal threats and kidnapping must be stayed. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Diaz and J.P. were married for approximately three years. During their marriage, Diaz accused J.P. of being unfaithful and “always thought [she] was cheating on him.” His jealousy sometimes led to violence. Their divorce was almost final. As J.P. drove to work between 4:45 and 5:00 a.m., she noticed a white car following her. It coasted silently behind her with the headlights off. Diaz was driving the white car. His brother D.F. lay in the back seat so J.P. would not see him. Diaz was armed with a knife. When J.P. parked, Diaz got out of his car. As she opened her car door, Diaz stood next to the door holding the knife. He told her to stay in the car or he would kill her. She climbed over the center console into the passenger seat. Diaz got into the driver’s seat of J.P.’s car and sped away. He was “driving crazy,” in and out of lanes. He said he was going to kill J.P. and himself. He said their daughter would be better off with his parents. He threw her wallet and phone out the window. He held the knife throughout the drive. Diaz asked J.P. for her boyfriend’s name and address,