California Court of Appeal Aug 28, 2023 No. E078441Unpublished
Filed 8/28/23 P. v. Guzman CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078441
v. (Super. Ct. No. FWV21000856)
ARTURO COLON GUZMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid A. Uhler,
Judge. Affirmed.
Randall Conner, 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, Collette C. Cavalier, Warren
Williams, and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Arturo C. Guzman stabbed his son and his son’s
girlfriend with a large kitchen knife in an unprovoked attack. A jury convicted him of
two counts of attempted murder and two counts of assault with a deadly weapon, and the
trial court sentenced him to 12 years eight months in prison.
Defendant argues his trial counsel was ineffective because counsel admitted
defendant’s guilt in violation of McCoy v. Louisiana (2018) 138 S.Ct. 1500 (McCoy),
failed to object to the trial court’s use of an improper circumstance in aggravation and
failed to request a mental health diversion. He also argues the matter must be remanded
for resentencing under recently enacted legislation. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived in an apartment in Fontana with his son, Horacio, his two
daughters, and Horacio’s girlfriend, Daisy.
One evening, Horacio and Daisy came home from work and found defendant
drinking beer and listening to loud music in the kitchen. Horacio briefly talked with
defendant before going to his bedroom, where he and Daisy got ready to go to the gym.
About 30 minutes later, Horacio and Daisy suddenly heard loud banging sounds
outside their bedroom and heard defendant mumbling to himself. Daisy heard defendant
saying, “‘I don’t care what happens to me.’”
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Horacio opened the bedroom door and saw defendant standing less than two feet
away, holding one or two knives. Daisy remembered defendant holding two “really big
kitchen knives.” Defendant immediately charged at Horacio with the knives while
Horacio screamed for defendant to stop. As defendant swung the knives around trying to
stab Horacio and Daisy, Horacio felt a knife pierce his chest.
Horacio ran around defendant towards the living room. Daisy ran after Horacio
and tried to go out through the front door, but it was barricaded with a kitchen chair.
Defendant followed them into the living room. Horacio told Daisy to run as defendant
started swinging the knives at both of them again, stabbing Horacio in his head, back, and
neck, and slashing Daisy on the head.
Horacio managed to move the chair and unlock the front door, and he and Daisy
ran to get help while Horacio screamed for someone to call 911. Within minutes,
Horacio saw defendant leave the apartment, go downstairs, and walk to the back of the
apartment complex. A neighbor, who heard someone screaming, went outside and saw
Horacio and Daisy bleeding with a trail of blood behind them. The neighbor followed
defendant, who got into a car and attempted to hit the neighbor and others with the car
while fleeing.
Defendant was charged with two counts of willful, deliberate, and premeditated 1 attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); counts 1 & 2), and two
counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 3 & 4). The
1 All further statutory references are to the Penal Code.
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information alleged that as to counts one and two, defendant personally used a deadly and
dangerous weapon (§ 12022, subd. (b)(1)), and that as to all four counts, he inflicted great
bodily injury on the victims (§ 12022.7, subd. (a)).
A jury convicted defendant on all counts and found the personal use of a deadly
weapon enhancements true on counts one and two. The jury found the willful, deliberate,
and premeditated allegation not true as to both attempted murder counts, and the great
bodily injury allegation not true as to all four counts. The trial court sentenced defendant
to a total term of 12 years eight months, which included a nine-year upper term on count
1 plus a one-year consecutive enhancement for the personal use of deadly weapon
finding.
III.
DISCUSSION
A. McCoy Error
Horacio testified that defendant was a heavy drinker and was drinking beer in the
kitchen when he and Daisy came home from work shortly before the attack. Defendant,
on the other hand, testified that he was watching a movie, not drinking.
At defense counsel’s request, the trial court instructed the jury on voluntary
intoxication as a defense to attempted murder but not to assault. The instruction
explained that the jury could consider whether defendant was voluntarily intoxicated “in
deciding whether [he] acted with an intent to kill or . . . with deliberation and
premeditation.”
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While the court was instructing the jury, defendant asked, “Why don’t you tell the
jury that there was alcohol in my son’s blood. You didn’t tell that to the jury.” Outside
the jury’s presence, the court admonished defendant and asked counsel to speak with
him.
After doing so, counsel told the court: “I think that the disagreement here really
falls under perhaps the parameter of McCoy. I’m not sure. He doesn’t want me to talk
about the [v]oluntary intoxication to vitiate the intent of the premeditated murder . . . and
get it down to a 245. I’m trying to talk to him about the fact that if he were to be
convicted 245 . . . then the sentence wouldn’t be that much more than [the] offer was at
the time. [B]ut he doesn’t want me to talk about . . . him drinking. I feel compelled I
have to talk about the 245’s.”
Shortly after, defendant interjected: “I don’t want the record to state that I’m an
alcoholic. I was drinking. I don’t drink alcohol at all in my life. Okay. I come from an
alcoholic father. I don’t drink alcohol. Okay. For me to be portrayed as an alcoholic,
like, is wrong.” During the brief colloquy with the court that followed, defendant
repeatedly emphasized that he did not want counsel to argue that defendant was drunk
during the attack.
The trial court then brought the jury back into the courtroom and asked the
prosecutor to begin closing argument. As to voluntary intoxication, the prosecutor
argued that it was no defense because “defendant knew what he was doing,” even if he
was drunk at the time.
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Toward the end of his closing argument, defense counsel responded to the
prosecutor’s argument on voluntary intoxication: “One other issue, though. It’s
[v]oluntary intoxication. Look, [Horacio] said when they walked in, he just wasn’t
drinking beer, but he was drunk. And he seen [sic] him drunk before. He knows the way
he appears. If somebody becomes voluntarily intoxicated, then that gets rid of or
eviscerates the willful, deliberate, premeditation of murder. Gets rid of it. That doesn’t
mean that it’s all over. Because that is not a defense to assault with a deadly weapon, just
to murder. So if you believe that the complaining witness says that [appellant] was
drunk, then that eviscerates—gets rid of intent to murder. It’s not the intent. It’s a
different type of intent for 245 or as you’ll see, assault with a deadly weapon
now. . . . ¶ . . . So they have to prove to you beyond a reasonable doubt—any reasonable
doubt—that [defendant] is guilty of either the murder or of the assault with a deadly
weapon. Given the involuntarily [sic] intoxication, they have [to] prove that to you.”
At sentencing, defense counsel explained: “With respect to the defense of an
involuntary intoxication, which would initiate [sic] the intent for attempted murder and to
just reduce that down to the assault with a deadly weapon, I would only say that but for
the McCoy case, we didn’t proffer that defense. I was instructed not to.”
In McCoy, the defendant “vociferously insisted on his innocence and adamantly
objected to any admission of guilt,” yet the trial court allowed his counsel to concede the
defendant committed three murders. (McCoy, supra, 138 S.Ct. at p. 1503.) The high
court held this violated the defendant’s Sixth Amendment right to counsel, reasoning that
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“it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense:
to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his
innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” (Id. at p.
1505.)
There was no McCoy error here. Defense counsel never conceded defendant’s
guilt, but instead argued that defendant was innocent and urged the jury to acquit him of
all charges. In doing so, defense counsel emphasized that defendant’s version of
events—including that he was not drunk and did not stab either victim—was correct
while Horacio’s testimony was not credible. Defense counsel also went through various
purported problems with the prosecution’s evidence while repeatedly stating the
prosecution had failed to meet its burden. As counsel put it, “There’s a hole in this case.
We’re not the ones who have to shovel it in. The prosecution does.” Defense counsel’s
statements throughout closing argument made clear that defendant’s position was that he
was entirely innocent.
Defense counsel’s argument about voluntary intoxication did not undermine
defendant’s position that he was innocent of all charges. Nor did it suggest, contrary to
defendant’s wishes, that defendant was drunk during the incident. Instead, defense
counsel was only responding to the prosecutor’s closing argument that although the jury
should believe Horacio’s account that defendant was drunk, voluntary intoxication was
not a valid defense. As defense counsel explained to the jury, “if you believe” Horacio’s
testimony that defendant was drunk, “then that eviscerates—gets rid of intent to murder.”
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(Italics added.) Counsel then reminded the jury that the prosecution had the burden of
proof as to all elements of the offenses, including the issue of voluntary intoxication.
Thus, when viewed in context of the parties’ closing arguments, defense counsel
never argued that defendant was drunk during the incident. Instead, counsel argued that
if the jury found that defendant was in fact drunk at the time, then the prosecution had to
prove beyond a reasonable doubt that his intoxication did not negate his intent to murder.
Throughout defense counsel’s closing argument, he maintained that defendant was
innocent of all charges because he did not stab the victims. We, therefore, conclude there
was no McCoy error here.
B. Remand for Resentencing
When stating its sentence, the trial court recognized that the middle term was the
presumptive sentence under recently amended section 1170, subdivision (b) and that it
could impose the upper term only as prescribed by section 1170, subdivision (b)(2). The
court also noted it could rely on a certified record of defendant’s prior conviction to
impose an upper term under section 1170, subdivision (b)(2). The court found that
defendant had previously been convicted of felony domestic violence (§ 273.5), and
“us[ed] this prior conviction as the aggravating factor to impose the upper term of nine
years in this matter,” because the “fact that the defendant suffered this prior conviction
indicates that his present convictions are of increasing seriousness.” The court continued:
“In addition, the fact that the jury found true that the defendant used a deadly weapon
supports the imposition of the aggravated term.”
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Defendant contends the trial court improperly relied on his prior conviction and
the jury’s deadly weapon true finding to impose an upper term on count 1. The People
argue the trial court properly relied on the prior conviction, which defendant admitted,
and concede that the court should not have relied on the deadly weapon finding, but argue
the error was harmless. We agree with the People in all respects.