Filed 8/27/15 P. v. Higueros CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B254813

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA058779)
         v.

ELDER R. HIGUEROS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Bernie C. LaForteza, Judge. Affirmed.


         Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.


                                ___________________________________
       A jury convicted defendant Elder Higueros of gross vehicular manslaughter while
intoxicated. (Pen. Code, § 191.5, subd. (a).)1 The trial court sentenced Higueros to serve
the upper term of 10 years in state prison.
       Higueros appeals contending the trial court abused its discretion by (1) excluding
parts of his interview as evidence, and (2) selecting the upper term of 10 years.
He further contends trial counsel rendered ineffective assistance by not objecting to the
use of aggravating facts at the sentencing hearing. We affirm.
                                           FACTS
       On February 16, 2013, Higueros crashed his car killing Joseph Contreraz, Jr.,
a passenger. Accident investigation by the California Highway Patrol (CHP) estimated
the speed at the time of crash at approximately 91.5 to 117.9 miles per hour.
Higueros lost control of his car after driving into a dirt center median on the 14 Freeway.
His blood-alcohol content was 0.154 about two and one-half hours after the crash
(breathalizer test2 at the hospital) and 0.14 about three hours after the crash (blood test).
       In June 2013, the People charged Higueros with murder (count 1; § 187, subd. (a))
and gross vehicular manslaughter while intoxicated (count 2; § 191.5, subd. (a)).
Jury trial began in late September 2013.
       At trial, a criminalist called by the prosecution opined Higueros’s blood-alcohol
content at the time of the crash was around 0.20. Multiple empty beer cans were
recovered at the scene of the crash. Higueros testified. He denied drinking any of the
empty beer cans found at the crash site. Instead, he claimed the beer belonged to
Contreraz and that only Contreraz drank in the car.
       The trial court instructed the jury on the two offenses. On count 2, the jury was
also instructed on the lesser offense of vehicular manslaughter while intoxicated with
ordinary negligence. On October 4, 2013, the jury returned verdicts finding Higueros not



1
       All further undesignated section references are to the Penal Code.
2
       Discussed in the record as a preliminary alcohol screening or PAS test.

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guilty of murder in count 1 and guilty of gross vehicular manslaughter while intoxicated
in count 2.
                                       DISCUSSION
I.     Claim of Error Excluding Statements
       Higueros contends his manslaughter conviction must be reversed because the trial
court excluded evidence of certain statements that he made during a police interview. In
other words, Higueros contends the trial court prejudicially erred in redacting parts of his
interview before it was presented to the jury. We disagree.
       Relevant Rule
       Evidence Code section 356 provides:
       “Where part of an act, declaration, conversation, or writing is given in
       evidence by one party, the whole on the same subject may be inquired into
       by an adverse party; . . . and when a detached act, declaration, conversation,
       or writing is given in evidence, any other act, declaration, conversation, or
       writing which is necessary to make it understood may also be given in
       evidence.”
       When one party seeks to admit a part of a statement the opposing party may admit
any other part necessary to place the original statement in its proper context. (People v.
Hamilton (1989) 48 Cal.3d 1142, 1174.) The purpose of Evidence Code section 356 is to
correct misleading impressions. (People v. Arias (1996) 13 Cal.4th 92, 156.)
       A trial court’s ruling under Evidence Code section 356 is reviewed for abuse of
discretion. (People v. Pride (1992) 3 Cal.4th 195, 235; People v. Parrish (2007) 152
Cal.App.4th 263, 274.) A reviewing court is to uphold the exclusion of evidence unless it
finds the trial court acted “arbitrarily, capriciously, or [in a] patently absurd manner that
resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1,
9-10.) The complaining party bears the burden of establishing an abuse of discretion.
(Estate of Hart (1953) 119 Cal.App.2d 310, 318.)




                                              3
       A. Relevant Proceedings
       The prosecutor moved to admit three short clips from a 48-minute police
interview. In its written motion in limine, the prosecutor explained the statements were
relevant to show:
              (1) the background information (whether defendant had any medical
              issues or his car had mechanical problems; where he was coming
              from and going to; who was driving; and what he had drank earlier
              in the day), and (2) defendant’s pre-existing knowledge about the
              dangers of DUI.
       Citing Evidence Code section 356 defense counsel argued Higueros’s statement of
surprise at the result of the preliminary alcohol screening test (“that reading can’t be
right”) and his explanation for a potential false reading (he was drinking wine with his
girlfriend the previous night) should also be admitted. The prosecutor objected arguing,
inter alia, that Evidence Code section 356 was inapplicable. The prosecutor summed up
the People’s objection as follows: “He’s trying [to introduce evidence] to excuse the
result[s of the blood alcohol tests].” The trial court ruled in favor of the prosecution
finding Evidence Code section 356 inapplicable. The trial court also relied on Evidence
Code section 352, finding the danger of prejudice substantially outweighed the excluded
statements’ probative value. Subsequently, defense counsel moved for reconsideration.
After hearing from the parties, the trial court stood on its prior ruling. During the trial,
a short audio clip corresponding to each of the identified areas, including alcoholic
beverages consumed just prior to driving, was played for the jury.
       B. Analysis
       1.     No Abuse of Discretion
       The statements offered by the prosecution generally served two purposes.
First, they tended to explain drinking activity just prior to driving the vehicle. Second,
they shed light on subjective mental state relevant to implied malice. Viewed from this
perspective, the excluded statements were not relevant to the admitted statements.
The statement of surprise concerning the result of the PAS test and the explanation for

                                               4
the potential false reading were freestanding subject matters unrelated to the admitted
statements. Thus, the trial court’s ruling was not arbitrary, capricious or patently absurd.
       At the motion to reconsider, Higueros argued that if he later testified, the earlier
exclusion order would mislead the jury into thinking he failed to be forthcoming at the
police interview. This misses the mark. The rationale underpinning Evidence Code
section 356 looks at the interplay between the opposing parties and a particular undivided
statement. If one party offers in evidence a part of a statement (or an act, declaration,
conversation or writing) leaving the whole incomplete, the opposing party may invoke
the rule of completeness to finish the whole to cure the misconception. The question to
be answered by the trial court is whether truncating a statement into parts and keeping
some from the trier of fact would be misleading, not whether a freestanding statement
otherwise inadmissible should be admitted to cure a perceived misconception. Other
provisions of law, such as prior consistent statement of a witness under Evidence Code
section 791, might remedy such a problem. Higueros cites People v. Zapien (1993)
4 Cal.4th 929 in support of his position. The case is inapposite. The facts in Zapien, like
other cases on the rule of completeness, looked at prior testimony as a whole and
considered whether the rule of completeness was properly applied when the trial court
admitted other portions of that prior testimony. Higueros has failed to establish an abuse
of discretion.
       2.        No Prejudice
       A claim of error in excluding evidence is reviewed for prejudice. (People v.
Alexander (2010) 49 Cal.4th 846, 909.) Assuming the trial court erred, we find no
probability of prejudice.
       Higueros testified and placed before the jury evidence regarding his drinking
activity with his girlfriend the night before the crash. The jury ultimately considered a
version of the excluded evidence. Higueros explained his conduct at his girlfriend’s
apartment the night before. Nevertheless, this testimony failed to persuade the jury he
was only culpable of ordinary negligence. As such, it is not reasonably probable that the
jury would have reached a different result had it learned of the excluded statements

                                              5
during Officer Lewis’s testimony. The timing and mode for the admission of this
evidence did not significantly alter the impact of the evidence as a whole.
       Further, the evidence of guilt on gross vehicular manslaughter while intoxicated
was overwhelming. That Higueros consumed beer at the barbeque was not disputed.
Less than two hours before the collision, Miguel Molina, a friend who spoke with
Higueros, said he sounded “a little slurry.” Two percipient witnesses who saw the
accident testified it appeared Higueros intentionally drove into the center dirt median at
almost 100 miles per hour in an attempt to pass the freeway traffic. At the crash site, a
CHP officer noticed Higueros smelled of alcohol, slurred his speech, exhibited bloodshot
eyes, and showed difficulty completing his sentences. A 18-pack box of beer inside the
vehicle tied with consumed beer cans at the crash site inferred Higueros drank while he
drove. His blood-alcohol content at the time of the accident was 0.20, more than twice
the legal limit. Based on the totality of this evidence, the jury understandably rejected
Higueros’s explanation he accidentally drove into the center median because of a cell
phone distraction and that only the decedent drank in the car. We see no reasonable
likelihood of a more favorable result had the excluded statements been admitted in the
prosecution’s case in chief.
II.    Claim of Error Imposing the Upper Term
       Higueros contends his sentence must be vacated and his case remanded for a new
sentencing hearing because the trial court erred in selecting the upper term. We disagree.
       A.     Relevant Rules
       A trial court’s sentencing decision is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) In response to Cunningham v.
California (2007) 549 U.S. 270, California’s Legislature eliminated the presumptive
middle term and authorized trial courts to choose any of the terms so long as a reason is
given for its choice.




                                             6
       Section 1170 (b) as amended in 2007 states in pertinent part as follows:
       “When a judgment of imprisonment is to be imposed and the statute
       specifies three possible terms, the choice of the appropriate term shall rest
       within the sound discretion of the court. . . In determining the appropriate
       term, the court may consider the record in the case, the probation officer’s
       report, other reports, including reports received pursuant to Section
       1203.03, and statements in aggravation or mitigation submitted by the
       prosecution, the defendant, or the victim, or the family of the victim if the
       victim is deceased, and any further evidence introduced at the sentencing
       hearing. The court shall select the term which, in the court’s discretion,
       best serves the interests of justice. The court shall set forth on the record
       the reasons for imposing the term selected . . .” (See § 1170(b).)
       Under the new scheme, trial courts are no longer required to weigh and make
ultimate findings of aggravating and mitigating factors. (Sandoval, supra, 41 Cal.4th at
p. 847.)
       B.     Relevant Proceedings
       The probation officer’s report listed two circumstances in aggravation: (1) the
crime involved great violence disclosing a high degree of cruelty, viciousness, and
callousness; and (2) the manner in which the crime was carried out indicated planning,
sophistication, and professionalism. The report cited lack of criminal record as a single
factor in mitigation. The report recommended the high term.
       The prosecutor filed a sentencing memorandum arguing for the upper term of 10
years based on the egregious nature of Higueros conduct and his failure to accept
responsibility.
       Higueros filed a written statement expressing regret for his actions that resulted in
the death of his best friend. Further, he filed a sentencing memorandum arguing for
probation based on lack of a criminal record and remorsefulness. The sentencing
memorandum included four character letters from friends and co-workers.



                                              7
       At the sentencing hearing, the prosecutor presented statements from the victim’s
family members and reiterated the People’s position for the upper term. Defense counsel
argued the aggravating factors listed in the probation report were unfounded. Regarding
the aggravating factor that the offense involved professionalism, sophistication, and
planning, counsel argued it was “ludicrous on its face.” On high degree of risk of bodily
harm, counsel acknowledged the “gross negligence here rests on speed, the manner in
which the car is driven.” However, he argued, the testimony of the two percipient
witnesses who saw the crash was not competent evidence. Counsel emphasized
Higueros’s complete lack of criminal record.
       After considering the arguments from both sides, the trial court struck the
aggravating circumstance that the offense involved sophistication and professionalism.
The court indicated it had read and considered the probation report, the People’s
sentencing memorandum, the defendant’s sentencing memorandum, the defendant’s
written statement, all letters submitted on his behalf, the facts adduced at trial, and the
arguments of the attorneys. The court made the following statements in imposing
sentence:
       “[T]he court has considered and finds the following aggravating facts relating to
the crime as set out in [California Rules of Court,] rule 4.421(a), subdivision (3): the
victim, compared to victims of similar crimes, was particularly vulnerable because he
was merely a passenger driven by [Higueros], who was intoxicated and drove with
reckless abandon.
       “In addition, the court has also considered other circumstances in aggravation as
permitted in rule 4.408: the fact that he drove in such a reckless and dangerous manner;
in this case, speeds up to 108 miles per hour, passing slower traffic on the left shoulder.
       “In considering probation, the court has considered facts relating to the crime
under California Rule of Court 4.414(a), the nature, seriousness, and circumstances of the
crime as compared to other instances of the same crime. And I find it to be more serious,
because in this case [Higueros]’s reckless driving to such a degree was so reckless that it
resulted in the killing of Joseph Contrera[z].

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       “Also the court has considered objectives of sentencing pursuant to rule 4.410 and
Penal Code section 1202.7. The court has considered the general objectives of
sentencing and the primary considerations in granting probation. These include
protecting society, punishment, deterrence, crime prevention, restitution, uniformity in
sentencing, and reintegration of [Higueros] into society.
       “In this matter, by the egregious conduct by [Higueros] while he was driving while
intoxicated and driving with such gross abandonment, the court does find that society
must be protected [from] this type of conduct. Also, [Higueros] should be similarly
punished for that type of behavior.”
       The court denied probation and sentenced Higueros to the upper term of 10 years
in state prison.
       C.      Forfeiture Doctrine
       In People v. Scott (1994) 9 Cal.4th 331 (Scott), our Supreme Court held
“complaints about the manner in which the trial court exercises it sentencing discretion
and articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at
p. 356.)
       Scott noted, “We conclude that the waiver doctrine should apply to claims
involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices. Included in this category are cases in which the stated reasons
allegedly do not apply to the particular case, and cases in which the court purportedly
erred because it double-counted a particular sentencing factor, misweighed the various
factors, or failed to state any reasons or give a sufficient number of valid reasons.”
(Scott, supra, at p. 353.)
       The People argue Higueros forfeited any challenge because he failed to object to
the court’s findings below. We agree.
       Review of the record shows defense counsel objected to the aggravating factors
recommended by probation. However, defense counsel made no specific objections to
the court’s own set of aggravating circumstances that was used to impose the upper term
(1) victim was particularly vulnerable, (2) aggravated speed, (3) crime was more serious

                                              9
when compared to other instances of the same crime, and (4) protecting society. He did
not argue the trial court’s reasons for imposing the upper term on these circumstances
were improperly considered. As such, Higueros forfeited this claim and did not preserve
it for review.
       D.        Analysis
       Assuming the claim of sentencing error was not forfeited, the trial court did not
abuse its discretion. “[A] trial court is free to base an upper term sentence upon any
aggravating circumstance that the court deems significant, subject to specific
prohibitions. [Citations.] The court’s discretion to identify aggravating circumstances is
otherwise limited only by the requirement that they be ‘reasonably related to the decision
being made.’” (Sandoval, supra, 41 Cal.4th at p. 848.)
       The trial court’s analysis for imposing the upper term focused on the offense, the
offender and public interest. The circumstances considered were reasonably related to
the facts and circumstances of the case. Among other aggravating circumstances, the
court found the descendent “a particularly vulnerable victim.” Challenging evidentiary
support that the decedent was “a particularly vulnerable victim,” Higueros claims the
decedent may have been equally intoxicated and thus was “an initiator of, willing
participation, or aggressor or provoker of, the incident.”
       We reject this argument. There is no evidence, either direct or circumstantial, that
the decedent encouraged Higueros to drive at speeds of up to100 miles per hour into the
dirt median of a highway. As the driver, Higueros exercised sole control over safety.
This finding was clearly supported by the evidence adduced in the trial.
       We likewise reject the argument the trial court “ignored” his lack of prior
criminality as a mitigating circumstance. While it is true, the trial court did not place
great emphasis on this factor, given the crime’s tragic and egregious nature, minimizing
the lack of criminality was not arbitrary and capricious. The trial court did not abuse its
discretion in imposing the upper term.




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III.   Ineffective Assistance of Counsel
       Taking a different path to the same end result of a vacated sentence and a new
sentencing hearing, Higueros contends that his trial counsel’s failure to object to the
aggravating facts that the trial court used in imposing the 10-year upper term warrants
relief under the law of ineffective assistance of counsel. We disagree.
       A.     Relevant Rule
       To obtain relief for ineffective assistance of counsel, a defendant must establish
(1) that his or her counsel’s performance was so deficient that it amounted to a failure to
function as the “counsel” guaranteed by the Sixth Amendment and (2) that the deficiency
prejudiced the outcome. (See Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland); and see, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1252.)
An attorney’s performance is deficient under Strickland when his or her conduct falls
below objective standards of reasonableness under prevailing professional norms.
(Strickland, supra, 466 U.S. at p. 688.) Prejudice under Strickland is established where
there is a reasonable probability that, absent counsel’s alleged errors, the outcome of the
proceeding would have been different. (Id. at p. 694.) A reasonable probability is a
probability sufficient to undermine confidence in the outcome. (Ibid.)
       B.     Analysis
       1. Objective Reasonableness
       Higueros has failed to establish his trial counsel’s performance at sentencing fell
below an objective standard of reasonableness. (Strickland, supra, 466 U.S. at p. 687.)
The record shows defense counsel filed a well-presented sentencing memorandum
challenging the probation officer’s report, specifically its finding of two aggravating
factors. During the sentencing hearing, the trial court engaged both counsel and
conducted a thorough hearing. In his bid for probation, defense counsel convinced the
trial court to strike one of the probation officer’s recommended aggravating factors.
The trial court came up with its own set of aggravating circumstances. Having convinced
the trial court to strike an aggravating factor recommended by probation, defense counsel
might well have thought objecting to the court’s own would be futile. Counsel are not

                                             11
required to make futile objections. (People v. Diaz (1992) 3 Cal.4th 495, 562.) Defense
counsel’s actions show professional awareness and diligence.
       2. No Prejudice
       Assuming defense counsel’s failure to object was ineffective, Higueros cannot
show the trial court abused its discretion in selecting the upper term as shown in section
II(D) of this opinion. The trial court properly exercised the scope of its wide discretion in
choosing the upper term. Thus, Higueros cannot demonstrate he was prejudiced by his
counsel’s failure to object because we see no reasonable probability doing so would have
yielded a more favorable result. (Strickland, supra, 466 U.S. at p. 694.)
                                      DISPOSITION
       The judgment is affirmed.




                                                         OHTA, J.*
We concur:


              BIGELOW, P.J.




              FLIER, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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