1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

ARTURO COLON GUZMAN,

Defendant and Appellant.

E078441

(Super. Ct. No. FWV21000856)

OPINION

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.
2

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.’”
3

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 

attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a); counts 1 & 2),

1

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.
4

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.”
5

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.
6

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 
7

“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.” 
8

(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.”
9

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.

“‘Senate Bill No. 567 (2021-2022 Reg. Sess.) amended section 1170, subdivision 

(b), making the middle term of imprisonment the presumptive sentence. (§ 1170, subd. 

(b)(2); Stats. 2021, ch. 731, § 1, effective Jan. 1, 2022.) A trial court may impose an 

upper term sentence only where there are aggravating circumstances in the crime and the 

defendant has either stipulated to the facts underlying those circumstances or they have 

been found true beyond a reasonable doubt. (§ 1170, subd. (b)(1)-(2).)’” (People v. 

Lewis (2023) 88 Cal.App.5th 1125, 1130 (Lewis), rev. granted S279147, May 17, 2023.) 

Under section 1170, subdivision (b)(3), “the court may consider the defendant’s prior 

convictions in determining sentencing based on a certified record of conviction without 

submitting the prior convictions to a jury.” However, “[t]he court may not impose an 

upper term by using the fact of any enhancement upon which sentence is imposed under 

any provision of law.” (§ 1170, subd. (b)(5).) All of these provisions applied at the time 

of defendant’s sentencing, which occurred after section 1170 was amended.

We first reject defendant’s argument that he did not admit that he had previously 

been convicted of felony domestic violence. Although he initially testified that he could 

not remember if he had been convicted of that offense, he later admitted that he had been 
10

convicted of the offense, explaining that he “was [a] little confused” when first asked 

about the conviction. Later, when asked who was with him when he went to the hospital 

for a stroke, he replied, “Prison officials because of the domestic violence as you talked 

about that I had.” Without any objection from defendant, the trial court later instructed 

the jury that they had “heard the defendant was convicted of a felony domestic violence 

charge.” Then, during closing argument, defense counsel stated that it was “true” that 

defendant had been convicted of domestic violence, but that “he took responsibility for 

it” and “went off to the jail.”

Because defendant admitted to the conviction, the trial court properly relied on it 

as an aggravating circumstance to impose an upper term on count 1 under section 1170, 

subdivision (b)(2). (See People v. Dunn (2022) 81 Cal.App.5th 394, 404.) And because 

we are satisfied beyond a reasonable doubt that a jury would have found beyond a 

reasonable doubt that defendant was previously convicted of felony domestic violence, 

the trial court’s reliance on defendant’s prior conviction satisfied the Sixth Amendment. 

(See People v. Zabelle (2022) 80 Cal.App.5th 1098, 1111.)

But defendant argues, the People concede, and we agree that the trial court 

erroneously relied on the jury’s personal use of a deadly weapon true finding to impose 

the upper term. As section 1170, subdivision (b)(5) unambiguously states, “[t]he court 

may not impose an upper term by using the fact of any enhancement upon which 

sentence is imposed under any provision of law.”
11

Defendant argues we assess the error under People v. Lopez (2022) 78

Cal.App.5th 459, while the People urge us to apply this court’s test in Lewis, supra, 88 

Cal.App.5th at p. 1131. But those cases apply when a trial court relies on circumstances 

in aggravation to impose an upper term when the facts underlying the circumstances have 

not been stipulated to by the defendant and have not been found true beyond a reasonable 

doubt by a jury. (People v. Lopez, supra, at pp. 467, 467, fn. 11; Lewis, supra, at p. 

1131.) Here, however, the trial court permissibly relied on defendant’s prior conviction 

but impermissibly relied in part on the jury’s true finding on the personal use of a deadly 

weapon to impose an upper term. Section 1170, subdivision (b)(5) prohibited the trial 

court from doing so, regardless of what defendant stipulated to or what the jury found. 

(§ 1170, subd. (b)(5) [“The court may not impose an upper term by using the fact of any 

enhancement upon which sentence is imposed under any provision of law.”].)

We need not decide which standard of prejudice applies because the error was 

harmless under any standard. The trial court had the discretion to impose an upper term 

on count 1 based on defendant’s uncontested prior felony domestic abuse conviction, 

which was less serious than his current convictions for attempted murder. (See California 

Rules of Court, rule 4.421(b)(2); § 1170, subd. (b)(3) [“[T]he court may consider the 

defendant’s prior convictions in determining sentencing.) The court explained that it was 

imposing the upper term for that reason alone, stating: “I’m using this prior conviction as 

the aggravating factor to impose the upper term of nine years in this matter. The fact that 

the defendant suffered this prior conviction indicates that his present convictions are of 
12

increasing seriousness.” (Italics added.) The court then explained that “in addition” to 

this aggravated circumstance, defendant’s use of a deadly weapon also “support[ed] the 

imposition of the aggravated term.”

In our view, these comments make clear that the trial court would have imposed 

the upper term on count 1 even if it did not consider the jury’s true finding on the deadly 

weapon enhancement allegation. The court’s reliance on that finding was therefore 

harmless under any standard. As a result, defense counsel was not ineffective for failing 

to object to the court’s consideration of the finding when imposing the upper term.

C. Mental Health Diversion

Defendant contends his trial counsel was ineffective for failing to request a mental 

health diversion under section 1001.36. We disagree.

To prevail on an ineffective assistance of counsel (IAC) claim, the defendant must 

show that (1) counsel’s representation fell below an objective standard of reasonableness 

under prevailing professional norms, and (2) counsel’s deficient performance was 

prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result 

would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 

U.S. 668, 688, 694; accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see 

People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1148.) A “‘“reasonable probability”’” 

is a probability sufficient to undermine confidence in the outcome of the proceeding. 

(People v. Mbaabu, supra, at p. 1149; Strickland v. Washington, supra, at p. 697.) The 

defendant bears the burden of demonstrating by a preponderance of the evidence that 
13

defense counsel’s performance was deficient and it resulted in prejudice. (People v. 

Centeno (2014) 60 Cal.4th 659, 674.)

“[R]arely will an appellate record establish ineffective assistance of counsel.” 

(People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on 

counsel’s actions, the claim must be rejected unless no satisfactory explanation exists or 

counsel was asked for an explanation and failed to provide one. (People v. Mendoza 

Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistance of counsel 

“unless there could be no conceivable reasonable for counsel’s acts or omissions.” 

(People v. Weaver (2001) 26 Cal.4th 876, 926.)

A trial court may grant pretrial diversion to a defendant who meets all six elements 

outlined in section 1001.36, subdivisions (b) and (c). (§ 1001.36, subd. (a).) These 

elements are: (1) the court is satisfied that the defendant suffers from a mental disorder 

identified in the Diagnostic and Statistical Manual of Mental Disorders; (2) the court is 

satisfied the “defendant’s mental disorder was a significant factor in the commission of 

the charged offense”; (3) a qualified mental health expert opines “the defendant’s 

symptoms of the mental disorder . . . motivating the criminal behavior would respond to 

mental health treatment”; (4) the defendant “consents to diversion and waives [his or her] 

right to a speedy trial”; (5) the defendant “agrees to comply with treatment as a condition 

of diversion”; and (6) the court is satisfied “the defendant will not pose an unreasonable 

risk of danger to public safety, as defined in [s]ection 1170.18, if treated in the 

community.” (§ 1001.36, subds. (b), (c).)
14

Defense counsel had several conceivable tactical reasons for not requesting a 

mental health diversion. First and foremost, defendant consistently denied he had any 

mental health issues and consistently refused mental health treatment. When defense 

counsel declared a doubt as to defendant’s capacity before trial, defendant claimed 

counsel was “malicious.” During those competency proceedings, a psychiatrist reported 

that defendant “viewed the idea of being considered incompetent insulting.” Defendant 

repeatedly told evaluating medical professionals that he did not have any mental health 

problems and refused medication and further treatment.

Second, defense counsel may have reasonably thought that a request for a mental 

health diversion would have been fruitless. After defendant was evaluated as part of the 

competency proceedings, it was reported that he had “current symptoms of mental illness 

or developmental disability,” and that he was competent in all 14 areas assessed during 

testing.

Third and relatedly, because defendant was deemed competent, defense counsel 

may have reasonably concluded that defendant’s potential mental health issues were not 

“a significant factor in the commission of the charged offense.”

Finally, defense counsel may not have requested a mental health diversion because 

he reasonably believed that the court would not find that defendant did not pose an 

unreasonable risk of danger to public safety (§ 1001.36, subd. (c)(4).) As the court stated 

at sentencing, the court declined to strike the personal use of a deadly weapon sentence 
15

enhancement because doing so would “place the victims in further serious danger of 

physical injury as evidenced by the defendant’s conduct.”

In short, defense counsel had sufficient tactical reasons not to request a mental 

health diversion. We therefore reject defendant’s claim that counsel was ineffective for 

not requesting a diversion.

IV.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

MILLER

J.

FIELDS

J.