Filed 8/17/16 P. v. Flores CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068359

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS275293)

DANIEL ROBERTO FLORES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Gary G.

Haehnle, Judge. Affirmed.

         Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Quisteen S. Shum and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.
       Daniel Roberto Flores entered a guilty plea to one count of attempted murder in

which he slit the victim's throat with a straight razor. (Pen. Code,1 §§ 664, 187.) Flores

admitted he used a deadly weapon in the commission of the offense. (§ 12022,

subd. (b)(1).) The allegation of the commission of great bodily injury was dismissed as

part of the plea agreement. The court sentenced Flores to a 10-year term consisting of a

nine-year upper term for the offense plus one year for the weapon.

       Flores appeals challenging only his sentence. Flores contends the court abused its

discretion in selecting the upper term. Flores recognizes trial counsel did not object to

the trial court's statement of reasons for selecting the upper term and that such failure

amounts to a forfeiture of the issue on appeal. Predictably, appellate counsel contends

the trial court's reasons were not supported by the record and thus trial counsel provided

ineffective assistance. Based on our review of the record we will find the trial court acted

well within its discretion in selecting the upper term. The trial court did err in using the

weapon use as an aggravating factor, since it served as the basis of the section

12022, subdivision (b)(1) enhancement. We conclude, however, the error was harmless

given the number of otherwise valid factors in aggravation. Finally, we will find Flores

has not met his burden of establishing ineffective assistance of counsel. Accordingly, we

will affirm the judgment and sentence.




1      All further statutory references are to the Penal Code unless otherwise specified.
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                                 STATEMENT OF FACTS

       Since this appeal arises from a guilty plea we will provide only a brief summary of

facts taken from the probation officer's report.

       In the afternoon of October 13, 2014, Flores was working as a barber. He was

providing a haircut and beard trimming to the victim in this case. Suddenly, and without

warning, Flores sliced the victim's throat with a straight razor.

       When Flores was apprehended, he was asked why he cut the victim's throat.

Flores said: "For being dumb. What the hell, judging me and disrespecting me. I don't

like being played a fool. Sorry Tim [the victim]."

                                        DISCUSSION

       Flores challenges the sentence imposed by the trial court. He contends the court

erred in imposing the upper term for the offense instead of the middle term. Essentially,

Flores argues the trial court failed to treat Flores's mental condition as a factor in

mitigation of sentence. He further argues the court erred in its selection and weighing of

the factors in aggravation. The defense did not object to the trial court's sentencing

decision or any of the reasons on which it was based.

                                       A. Background

       The parties filed statements in mitigation and aggravation in the trial court. The

defense material contained statements from two mental health experts. One was from a

doctor appointed to evaluate Flores for competency to stand trial. The second was a

doctor retained by the defense to write a report for sentencing. The trial court read and

considered all of the submissions and the probation officer's report.

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       In making its sentencing decision, the trial court found the defendant's lack of

criminal record and early admission of guilt to be factors in mitigation. The court,

however, did not find the mental health reports presented any evidence mitigating the

crime. The court acknowledged Flores had mental issues, but did not find his mental

condition to be a mitigating factor.

       The court found aggravating factors to include the infliction of great bodily injury

on the victim, that the victim was particularly vulnerable, that Flores fled without

attempting to help the victim, and that Flores is a danger to society. Flores does not

challenge the validity of the listed factors in aggravation. The court did, however,

improperly use the fact the defendant was armed with a weapon as a factor in

aggravation. Flores contends, and the People properly concede, the court could not use

the weapon as an aggravating factor since the court imposed an additional term of one

year for the weapon enhancement. Although the People concede the error with regard to

the use of the weapon, they contend the error was harmless in light of the remaining,

valid factors in aggravation.

       The People have briefly commented on the failure to object to the trial judge's

sentencing choices. Ordinarily one cannot raise an alleged error in the selection of a

sentence on appeal without first making a timely objection in the trial court. (People v.

Scott (1994) 9 Cal.4th 331, 348-353.) However, forfeiture was not listed by the People as

a basis for affirming the sentence and was only briefly referenced. We find it

unnecessary to address the forfeiture issue further and will proceed to address the merits

of the appeal.

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                                     B. Legal Principles

       A trial court has broad discretionary powers in the sentencing process. The court's

choices of aggravating and mitigating factors, as well as the qualitative weighing of such

factors is a matter within the trial court's discretion. (People v. Avalos (1996) 47

Cal.App.4th 1569, 1582.) We review the trial court's sentencing choices under the abuse

of discretion standard. Under that standard we will not overturn a trial court's sentencing

choice absent a showing of clear legal error or a manifest abuse of discretion. We may

not substitute our evaluation of the sentencing choices for that of the trial court. (People

v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

       The trial court has the authority to determine what are mitigating and aggravating

factors and to determine the weight to be given to them. (People v. Avalos, supra, 47

Cal.App.4th at pp. 1582-1583.) A single, valid factor in aggravation is sufficient to

support an upper term sentence. (People v. Castellano (1983) 140 Cal.App.3d 608, 615.)

                                         C. Analysis

       At the sentencing hearing the trial judge explained his views on the psychiatric

evaluations offered in mitigation of the sentence. After reviewing all of the mental health

reports the court found they did not present evidence which mitigated the defendant's

culpability in this case. The court said in part:

          "The Court: When I look at everything that has been supplied to the
          Court in the way of mitigants [sic], I find two: no prior record and
          early acknowledgment of wrongdoing in the criminal process.

          "I disagree, and the reason why I don't agree with probation and
          defense that says that the defendant was suffering from a mental
          condition that significantly reduced his culpability of the crime. I

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          cannot find that as a circumstance in mitigation. And the reason
          being, I read Dr. Naimark's report and I read Dr. Carroll's report.
          Everybody says that, yes, there are some mental illness or hints of
          mental illness in Mr. Flores, but nobody, no doctor or Mr. Flores,
          indicates that the mental illness is a cause for this offense.

          "He was suffering from no auditory or visual hallucinations. He
          never said anything about how he was afraid Mr. Vaughn was going
          to attack him, that there was any other reason to be paranoid or
          afraid to act out in some self-defense issue when he did this. There
          is nothing to indicate at all that the reason for this was due to any of
          his mental illnesses that the doctors have looked at.

          "And so I cannot find that as a statement in mitigation because there
          is no support for it in the information that I have been given and read
          and considered for today."

       The court also stated that it meticulously examined the mental health reports

concerning appellant and found nothing about appellant's schizophrenia being the cause

of or contributing to his attack upon the victim:

          "The Court: I looked -- I looked in the psychological reports. I
          looked to see if there was any information that could connect the
          mental illness to this crime, and I have -- there's just nothing there. I
          just don't see it."

The record supports the trial judge's analysis. Neither of the doctor's reports explained

how any mental impairment Flores suffered impacted the commission of the crime. The

first report was for the purposes of determining competency to stand trial. That doctor

observed that Flores could not explain why he attacked the victim "other than for [Flores]

to infer mental health decompensation at the time."

       The probation officer, however, apparently believed that the mental health issues

experienced by Flores impacted his culpability. The probation officer did not have any

information that Flores was experiencing a psychotic episode at the time of the offense,

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but surmised he had done so because Flores had experienced such episodes in the past.

The trial court did not accept the probation officer's opinion as to the mitigating nature of

the mental health issues.

       The remaining doctor analyzed the defendant's background and mental health

history. The doctor discussed whether the defendant was amenable to treatment, if he

remained drug and alcohol free. That doctor did not offer an opinion that the defendant's

mental condition reduced his culpability for the current offense.

       It is not our task to reweigh the factors in aggravation and mitigation, that is the

province of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)

Instead, we are limited to determining whether the sentencing decision is irrational or

arbitrary. (Id. at pp. 376-377.)

       It is possible that different judges might have weighed the mitigating nature of the

mental health evidence differently. That reality, however, only illustrates the

discretionary nature of the sentencing process in this case. We cannot say the trial court

erred in its weighing and evaluation of the material offered in mitigation.

       Turning then to the factors in aggravation, the only factor disputed by Flores is the

trial court's reliance on the use of a weapon. As the People correctly concede, the court

could not use the fact of weapon use as a factor in aggravation and still impose the one-

year enhancement. (People v. Forster (1994) 29 Cal.App.4th 1746, 1758.) Recognizing

the trial court erred, the question presented is whether the error requires resentencing.

We conclude it does not.



                                              7
       Here there are four factors in aggravation found by the court, including the

infliction of great bodily injury, which are not disputed. As we have noted, a single, valid

factor in aggravation can support an upper term sentence. (People v. Castellano, supra,

140 Cal.App.3d at p. 615.) Given the comments of the trial judge, the serious nature of

the offense and the grievous harm inflicted on the victim, we are satisfied it is not

reasonably probable that a different sentence would have been imposed in the absence of

the error.

                           D. Ineffective Assistance of Counsel

       Finally, Flores asserts defense counsel was constitutionally ineffective for failing

to object to the judge's sentencing decision. Flores has not carried his burden to establish

ineffective assistance.

       First, we have not applied forfeiture, thus counsel's failure to object has not

disadvantaged Flores. His arguments regarding sentencing have been evaluated on the

merits, and rejected by this court.

       Where a defendant seeks to overturn a conviction based on ineffective assistance

of counsel, the defendant has the burden to show not only that counsel's conduct was

below the standard of care, but also that the defendant was prejudiced. (Strickland v.

Washington (1984) 466 U.S. 668, 687 (Strickland).) In order to establish prejudice under

the Strickland standard, the defendant must demonstrate a reasonable likelihood that a

different result would have occurred in the absence of the alleged error. (Id. at pp. 687-

688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Flores has not even come

close to establishing prejudice.

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       As we have indicated, the failure to object has not worked a forfeiture. Further,

even if there had been a timely objection to the invalid factor, there were four valid

factors in aggravation, and the court did not credit the mental health condition as a factor

in mitigation. The failure to timely object to the single invalid factor in aggravation has

not caused Flores any prejudice.

       In the absence of a showing of prejudice under Strickland, supra, 466 U.S. 668,

we do not need to address the question of whether defense counsel's failure to object was

inadequate performance.

                                      DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:



HALLER, J.



McDONALD, J.




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