Filed 6/23/21 P. v. Diaz CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EZEQUIAS DIAZ,

Defendant and Appellant.

 B306058

 (Los Angeles County

 Super. Ct. No. BA431915)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Douglas W. Sortino, Judge. Affirmed.

Johanna Pirko, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Stephanie C. Santoro, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Ezequias Diaz (defendant) 

appeals from his conviction of attempted murder.1 He contends 

that the prosecutor engaged in prejudicial misconduct during 

closing argument by misstating the law, that counsel rendered 

ineffective assistance by failing to object, and that the trial court 

improperly relied on the facts underlying the enhancement 

allegations to impose the aggravated term. Finding defendant’s 

contentions forfeited or without merit, we affirm the judgment.

BACKGROUND

Defendant was charged with the attempted murder of 

Guadalupe Sanchez in violation of Penal Code sections 187 and 

664, subdivision (a).2 It was alleged that the attempted murder 

was willful, deliberate, and premeditated; that defendant 

personally inflicted great bodily injury upon the victim within the 

meaning of section 12022.7, subdivision (a); and that he used a 

deadly and dangerous weapon, a car, in the commission of the 

offense within the meaning of section 12022, subdivision (b)(1). A 

jury convicted defendant of the attempted murder but found not 

true the allegation that it was willful, deliberate and 

premeditated. The jury found true the allegations of great bodily 

injury and the use of a deadly weapon. The trial court sentenced 

1 The information filed in this case has defendant’s name as 

Jose Antonio Ruiz, which was an alias defendant used at his 

place of employment. We found nothing in the record to show 

that the information was ever amended to reflect defendant’s 

true name, but the remainder of the record, including the 

minutes and the verdict, refers to defendant’s true name.

2 All further statutory references are to the Penal Code, 

unless otherwise indicated.
3

defendant to a total of 13 years in prison, consisting of nine years 

for the attempted murder, plus three years for the great bodily 

injury enhancement and one year for the use of a deadly weapon.3

Defendant filed a timely notice of appeal from the 

judgment.

Prosecution evidence

Sanchez testified that on an evening in August 2014, he 

bought a beer at Jerry’s Liquor store on his way home from work, 

which he took outside and drank in front of the liquor store. 

During this time a man he did not know came out of the store 

and ran him over with a car. Sanchez could not remember the 

incident very well. He did recall waking up in the hospital, 

where he stayed for about three weeks undergoing surgeries. His 

leg and chest were injured, and he lost a testicle. It took him 

about six months to recuperate, during which time he could not 

work and had to use crutches. At the time of trial in early 2020, 

his leg still hurt, and he was able to work only part time.

Sanchez was shown a surveillance video of the incident, in 

which he was able to identify himself and the man who ran him 

over. Sanchez remembered that he and the man had argued, but 

he could not remember what they argued about. Sanchez denied 

that the video showed him reaching into his backpack during the 

3 In a footnote in respondent’s brief it is noted that the 

abstract of judgment is not included in the clerk’s transcript. 

Within the footnote there appears to be a motion pursuant to 

rules 8.155(a) and 8.340(c) of the California Rules of Court to 

augment the record with the abstract. However, as this motion 

does not comply with rule 8.155(a), and respondent has not 

claimed to have requested a copy of the abstract from the 

superior court, we deny the motion.
4

encounter with the man but said it showed him just adjusting the 

strap. Sanchez denied that he had a gun or said to the man that 

he had a gun and was going to shoot him, but he could not 

otherwise remember what he said or did not say. Sanchez 

remembered that he had $200 with him that day, and when the 

hospital returned his property, the $200 was included.

Los Angeles Police Officer Brendan Flynn arrived at Jerry’s 

Liquor store soon after Sanchez had been injured. He testified to 

having observed tire marks on Sanchez’s abdomen and to having 

recovered Sanchez’s testicle near where he lay. 

Firefighter/paramedic Brad Ibanez arrived on the scene a few 

minutes later finding Sanchez impaired, altered and combative. 

Ibanez stabilized Sanchez and put him in restraints. He 

observed that Sanchez had facial abrasions, road rash on the 

right forearm, severe road rash and bruising to his abdomen, a

testicular sac rupture, and blood in his mouth.

Defendant had gone to Jerry’s Liquor store that evening 

with his friend and coworker Alba Florian. Florian testified that 

the two of them went there in defendant’s car to buy beer. While 

there they saw a man whom they did not know (Sanchez) right 

outside the door. When they came out with their beer, the man 

started bothering them and appeared to be drunk. Sanchez 

mostly bothered Florian, seeming to flirt, but using foul 

language. Defendant told him to relax, to go away and stop 

bothering her, but Sanchez ignored defendant and kept insulting 

Florian. Sanchez also insulted defendant and behaved as though 

he wanted to fight. Defendant and Sanchez began arguing, and

defendant, no longer calm, appeared to be about to fight Sanchez. 

Florian denied that the two men physically fought or that there 

was any punching or kicking. Florian tried to pull defendant 
5

away, saying, “Let’s go,” and claimed she saw another man 

approach, apparently to help Sanchez. Later, she testified that 

the second man came after she got into defendant’s car, that 

defendant followed her a short time later, and that he did not 

punch or kick anyone. She claimed that as defendant walked 

away, Sanchez continued to insult defendant, and that as 

defendant was about to start the car, Sanchez walked in front of 

it, making challenging hand gestures and preventing them from 

going forward. Florian ducked down, closed her eyes, and did not 

see anything until they were out of the parking lot. She began

crying and defendant told her to be quiet. They did not speak at 

all after that and did not discuss the incident.

During her testimony Florian was reminded of her 

interview with Detective Reyes about four months after the 

incident, in which she said that just before she bent forward, she 

screamed and then heard a bump. Defendant then backed up 

and she shouted, “You killed him,” or something to that effect. 

Defendant told her to stop it and “shut up,” and that the man 

stood up. Florian told Detective Reyes that when defendant 

backed up she heard a crack, she screamed, asked defendant 

what happened, and begged him to stop. Defendant yanked her 

hair and said, “Calm down now.” She also told Detective Reyes 

that she was afraid of defendant, as she found him intimidating.

Sometime after her interview with the detective, a 

coworker told defendant and Florian that the police were looking 

for him, and he had seen them on television. Defendant told 

Florian that he had not realized that he had run over the man

and said he was just trying to scare the man. Defendant stopped 

going to work once he found out the police were looking for him. 

He did not answer her calls for two or three months. When they 
6

did speak months later, she told defendant that Detective Reyes 

wanted to talk to him and suggested defendant comply. He 

refused, saying that he was not at fault. At some point,

defendant told Florian that he was in Salt Lake City and later 

that he had moved to Las Vegas.

Surveillance videos were played in court as Florian 

described the action.4 She and defendant were identified as they

walked into the liquor store and back out. They are seen sitting

down as they begin drinking their beers. Sanchez, with his 

backpack, is seen on the sidewalk, also drinking a beer. A man in 

a blue shirt stands next to Sanchez. Another angle shows Florian 

and defendant walking out of the liquor store with Sanchez 

leaning against a wall at the bottom of the screen. 

After awhile Sanchez is seen as he starts bothering 

defendant and Florian. Defendant is seen throwing a beer bottle 

at Sanchez and punching and kicking him. The man in the blue 

shirt is no longer seen in the video when defendant was punching 

and kicking Sanchez.

Defense evidence

Blood alcohol expert

The defense called a forensic chemist who had reviewed 

Sanchez’s laboratory results from his hospital record. Sanchez’s 

blood was drawn at 9:35 p.m., tested and found to have a blood 

alcohol content that was high for a human being, the equivalent 

of a 0.267 blood alcohol level if tested using whole blood rather 

than plasma (more than three times the 0.08 percent presumed 

as being impaired to drive). A 160 pound man would have fully 

4 The exhibits have not been transmitted to this court for our 

review. We thus summarize the action from the testimony of 

Sanchez, Florian and defendant. 
7

absorbed the alcohol equivalent to 11 and one-half 12-ounce, 4

percent (light) beers.

Defendant’s testimony

Defendant testified that on August 1, 2014, he had been 

employed for five years as the manager of the clothing company 

where he and Florian worked. Though married, defendant was 

dating Florian at the time. On direct examination defendant 

testified that he drove to work that day in his white Ford 

Explorer SUV, and after work he gave a ride to Florian. Between 

8 and 8:30 p.m., they stopped to buy beers and were sitting on the 

curb in front of the liquor store drinking them when Sanchez, 

who appeared to be intoxicated, approached them and asked for 

money. Sanchez became hostile and cursed at them when 

defendant said he did not have money, and Florian told him to go 

away. Defendant then stood, faced Sanchez and told him not to 

be disrespectful. Sanchez responded, “What? Do you want to 

fight with me?” When Florian urged defendant to ignore Sanchez 

and tried to lead him away, Sanchez responded, “What? Are you 

going to hide behind a woman?” Defendant told Florian to get in 

the car; and because Sanchez continued to provoke and insult

him using foul language, defendant grabbed a bottle and threw it 

at Sanchez but missed him. Defendant also tried to kick Sanchez

but claimed that he did not remember making contact. When 

shown portions of the surveillance video, defendant admitted that 

the video showed him throwing a beer bottle at Sanchez, kicking 

him once and striking him in the chest once.

Defendant also claimed that as Sanchez moved his 

backpack from his back to his front, Sanchez said he was going to 

kill defendant and that he had a gun in his backpack. Defendant 

saw Sanchez trying to reach into the backpack, felt afraid,
8

panicked, and angry. He quickly got into his car and backed out 

of his parking spot. Defendant did not see a gun but saw Sanchez 

moving his hands in a challenging manner, so defendant drove 

the car toward Sanchez, accelerated, and ran him over. Because 

there was a wall in front of the car and no exit from the parking 

lot in that direction, defendant backed up in order to get away. 

He claimed that it all happened in seconds.

Defendant did not tell Florian that Sanchez had a gun or 

that he threatened to kill him, explaining that she was 

hysterical, crying and bent down. He denied pulling her hair, 

claiming that he just put his hand on her head and told her to 

calm down. When a coworker told him about the television

broadcast, defendant did not go to the police because he was 

afraid they would not believe his story. He moved to Salt Lake 

City for about two months, then moved to Las Vegas when his 

former employer moved his business. Defendant was eventually 

arrested in Las Vegas about two years later.

On cross-examination, defendant testified that Sanchez 

approached him and Florian about 20 minutes after they arrived, 

and Sanchez’s behavior toward Florian made defendant angry 

because he was disrespecting a woman. Defendant also claimed 

to be afraid of Sanchez.5 Sanchez continued to challenge him and 

insult them. Defendant testified that he had no other option and 

explained, “If he’s disrespecting me and he’s disrespecting me, 

obviously, I had to react in some way.” In response to the 

prosecutor’s question whether he had no choice but to punch and 

kick a man who was insulting him, defendant said, “Because he 

5 Defendant never saw two men, testifying that only one man 

confronted him.
9

told me he wanted to fight.” Defendant agreed that he wanted to 

fight Sanchez, because “[h]e had insulted me so many times that 

it’s obvious that I had to fight him.” Defendant explained that he 

threw the bottle to “shut [Sanchez] up” when he started “cussing 

[him] out”; and although Sanchez was across the parking lot 

when he threw it, defendant “could hear what he was saying.” 

Sanchez kept on talking and making his hand motions. The 

insults and challenging hand motions were “making” defendant 

react in anger. Defendant then went to Sanchez and kicked him, 

but when that did not quiet him, defendant punched him. 

Defendant claimed Sanchez swung at him; and although Sanchez 

did not connect and hit defendant, it was not defendant’s decision 

to fight “with everything he was saying to me, he was trying to 

provoke a fight with me and you can’t ignore that. One can’t 

ignore that with someone you don’t even know.”

After defendant told Florian to get in the car, he claimed 

that he got into his car and put it in reverse. Sanchez “was 

already in front of the car” and waving his hands back and forth 

above his head. Defendant denied that Sanchez remained where 

he had left him, some distance from the car. In still photographs 

of the parking lot, defendant identified both his SUV and 

Sanchez, who was standing with his hands down at his side and 

empty space around him. When asked whether he aimed his car 

directly at Sanchez, defendant testified, “I didn’t exactly aim it. 

It was rather that the person was provoking me. It was a matter 

of seconds. It wasn’t that I aimed it or planned anything. It was 

just a matter of seconds.” Defendant admitted that when he saw 

Sanchez in front of him, he accelerated, despite knowing that it 

was the opposite direction from the only exit from the parking lot. 

Defendant explained that he was looking at Sanchez to see if he 
10

was going to get the weapon he said he had. Sanchez was 

standing still, but his hands were moving. 

Defendant admitted to having run over Sanchez because 

Sanchez continued to provoke him. Although defendant could not 

hear what Sanchez was saying because the windows were up, he 

could see that Sanchez continued to talk. Defendant agreed that 

the video showed that the SUV ran completely over Sanchez’s

body with the right front tire. Defendant explained that although 

he knew that he had run over Sanchez, having felt the car go over 

him, defendant did not know “how the action took place.” He also 

denied that he felt the tires go over Sanchez’s body and claimed 

that he did not feel anything when he was going forward. 

Defendant also claimed that although he knew he had hit 

Sanchez, he thought Sanchez had just been pushed, causing him 

to fall in front of the car, making it necessary for defendant to put 

his car in reverse. However, defendant then admitted he thought 

he had run over Sanchez going forward, which made him feel 

that he had to flee, so he backed up in a panic. Defendant 

explained that it was when he backed over Sanchez that he felt

his car going over something. Knowing he had run over Sanchez 

a second time, defendant drove away but claimed he drove away

because he saw Sanchez stand up.

Defendant acknowledged that he “partly” understood that 

he had done something wrong but pointed out that he was 

provoked. Defendant explained that he did not worry about 

Sanchez or feel bad, because Sanchez had threatened to kill 

defendant. He explained that he did not stay and call the police 

because the police would sometimes believe the victim more than 

the person who was aggressive. Defendant later “felt partly 

guilty for doing that, for, in a way, taking his life and he ruined 
11

mine too.” Defendant drove away and refused to discuss the 

event with Florian. He never told her that Sanchez was trying to 

pull out a gun or that he had threatened to shoot defendant.

DISCUSSION

I. Alleged prosecution misconduct

Defendant contends that his conviction should be reversed 

because the prosecutor engaged in prejudicial misconduct by 

misstating the law during rebuttal closing argument. Turning to 

defendant’s claim of self-defense, the prosecutor stated, “This is a 

perfect case. Self-defense is one of those things that you have to 

decide.” He continued:

“Do you think this is okay, to do what he did? I can’t 

hold him responsible. The police can’t hold him 

responsible. The judge can’t hold him responsible.

This is in your hands, as our members of our 

community, to say, no, you’ve crossed the line with 

that one. Okay? [¶] And it’s five years coming. He 

thought this day was never going to come. He 

thought this would all just blow over if he just 

disappeared to Nevada or wherever he went. Okay? 

But presumption of innocence ends now because 

you’ve heard the evidence now and you have to make 

a decision about what kind of conduct is going to be 

okay.”

Defendant notes the phrase, “presumption of innocence 

ends now,” standing alone, and claims a misstatement of the law, 

as the presumption of innocence continues into deliberations 

until the jury reaches a verdict. (People v. Dowdell (2014) 227 

Cal.App.4th 1388, 1407-1408.) However, defendant 

acknowledges that his trial counsel did not object or request an 

admonition. “As a general rule a defendant may not complain on 
12

appeal of prosecutorial misconduct unless in a timely fashion—

and on the same ground—the defendant [requested] an 

assignment of misconduct and [also] requested that the jury be 

admonished to disregard the impropriety. [Citation.] 

Additionally, when the claim focuses upon comments made by the 

prosecutor before the jury, the question is whether there is a 

reasonable likelihood that the jury construed or applied any of 

the complained-of remarks in an objectionable fashion.” (People 

v. Samayoa (1997) 15 Cal.4th 795, 841.)

It is clear that the trial court would have given the jury the 

appropriate admonition had it been requested. During the

prosecutor’s opening summation, when defense counsel objected 

to a statement, the trial court overruled the objection but 

admonished the jury as follows: “[T]o the extent there is a 

conflict with the law between what the lawyer is saying and the 

instructions I read, it’s the instructions that control. During 

arguments, the lawyers make arguments about how you should 

construe things and how you should find things, but it’s up to you 

to make those decisions and follow the law that I give to you.” “It 

is fundamental that jurors are presumed to be intelligent and 

capable of understanding and applying the court’s instructions.” 

(People v. Gonzales (2011) 51 Cal.4th 894, 940.) We thus agree 

with respondent that the issue is forfeited.

Defendant contends that despite counsel’s failure to object 

or request an admonition, reversal is required because the failure 

amounted to a denial of effective assistance of counsel as 

guaranteed by the Sixth Amendment to the United States 

Constitution and article I, section 15 of the California 

Constitution. (See Strickland v. Washington (1984) 466 U.S. 668, 

686-688.) A defendant bears a heavy burden to demonstrate both 
13

counsel error and resulting prejudice. (Id. at p. 687.) A 

reviewing court may proceed directly to the issue of prejudice if it 

is easier to dispose of an ineffectiveness claim on that basis. 

(Ibid.; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Such is 

the case here. 

Defendant must affirmatively prove prejudice by 

demonstrating a reasonable probability that the result of the 

proceeding would have been different absent the alleged error. 

(Strickland v. Washington, supra, 466 U.S. at p. 694.) “A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (Ibid.) Defendant attempts to show 

prejudice by arguing that prejudice is shown by the jury’s finding 

the allegation that the attempted murder was committed 

willfully, deliberately, and with premeditation to be not true. He 

argues that this not true finding demonstrates that “[t]he jury 

had doubts about the prosecution’s case and may have questioned 

whether [defendant] intended to kill Sanchez when he struck him 

with his truck.” (Italics added.)

“A defendant must prove prejudice that is a ‘“demonstrable 

reality,” not simply speculation.’” (People v. Fairbank, supra, 16 

Cal.4th at p. 1241.) Defendant has failed to do so here. When 

the prosecutor’s comment is viewed with the jury instructions 

given, the more reasonable inference to be drawn from the jury’s 

not true finding is that the jurors understood and took seriously 

their roles by following the trial court’s instruction to presume 

defendant innocent until satisfied that the prosecutor proved 

premeditation beyond a reasonable doubt. The jury was so 

instructed prior to the prosecutor having uttered the disputed

phrase. The first instruction was CALCRIM No. 200, which 

included: “You must follow the law as I explain it to you, even if 
14

you disagree with it. If you believe that the attorney’s comments 

on the law conflict with my instructions, you must follow my 

instructions.” Shortly thereafter, the trial court read CALCRIM 

No. 220, which included:

“A defendant in a criminal case is presumed to be 

innocent. This presumption requires that the People 

prove a defendant guilty beyond a reasonable doubt. 

Whenever I tell you the People must prove 

something, I mean they must prove it beyond a 

reasonable doubt. [¶] Proof beyond a reasonable 

doubt is proof that leaves you with an abiding 

conviction that the charge is true. The evidence need 

not eliminate all possible doubt because everything in 

life is open to some possible or imaginary doubt. [¶] 

In deciding whether the People have proved their 

case beyond a reasonable doubt, you must impartially 

compare and consider all the evidence that was 

received throughout the entire trial. Unless the 

evidence proves the defendant guilty beyond a 

reasonable doubt, he is entitled to an acquittal and 

you must find him not guilty.”

By the time final arguments began, the jury had been 

instructed no fewer than seven more times regarding the 

prosecution’s burden of proof beyond a reasonable doubt: See 

CALCRIM No. 601, regarding premeditation and deliberation; 

CALCRIM No. 603, regarding attempted voluntary manslaughter

and heat of passion; CALCRIM No. 604, regarding imperfect selfdefense; CALCRIM No. 3145, regarding personal use of a deadly 

weapon; CALCRIM No. 3160, regarding great bodily injury;

CALCRIM No. 3470, regarding self-defense and defense of 

another; and CALCRIM No. 3517, regarding verdict forms.

Defendant also suggests that the not true finding as to 

premeditation shows that without the prosecutor’s remark 
15

regarding the presumption of innocence, at least one juror may 

have believed that he acted in self-defense. More likely the jurors 

found defendant guilty of attempted murder because they 

believed defendant’s testimony that he acted in anger, but they 

had a reasonable doubt about deliberation and premeditation.6

Defendant admitted reacting to Sanchez because he was angry 

and felt disrespected, claiming that he had no other option

because “[i]f he’s disrespecting me and he’s disrespecting me, 

obviously, I had to react in some way.” Defendant tried throwing

a beer bottle at Sanchez, tried kicking and punching him, but the 

insults continued. Defendant admitted he ran over Sanchez 

because he had been provoked by Sanchez, who was directly in 

front of him waving his hands back and forth. Defendant 

admitted that he ran over Sanchez a second time in order to 

facilitate his escape from the scene.

We cannot agree with defendant that without the 

prosecutor’s remark, the jury would have had reason to find that 

defendant acted in self-defense or imperfect self-defense. 

Defendant testified that he was walking away from Sanchez 

trying to get into his car as soon as possible at the time he saw 

Sanchez reached into his backpack, an action that Sanchez 

described as adjusting the strap on his backpack, not trying to 

unzip or reach into it. Since defendant failed to provide the 

surveillance videos, still photographs, or any other exhibits to 

this court for review, he also fails to present an adequate record 

for review on appeal and to affirmatively demonstrate error. (See 

6 The trial court read CALCRIM No. 601, which defines 

deliberation and premeditation including “[a] decision to kill 

made rashly, impulsively, or without careful consideration of the 

choice and its consequences is not deliberate and premeditated.”
16

People v. Whalen (2013) 56 Cal.4th 1, 84, disapproved on another 

point in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17.) 

Error is never presumed from a silent record. (Denham v. 

Superior Court (1970) 2 Cal.3d 557, 564.) We thus assume that 

the video and still photographs would support the jury’s rejection 

of defendant’s claim of self-defense.7

We conclude that overwhelming evidence shows that if 

defendant harbored any reasonable or unreasonable belief in the 

need for self-defense, it ended when defendant admittedly 

accelerated toward Sanchez upon seeing him standing at some 

distance with his hands visible and either down at his sides or 

waving in the air, and not reaching into his backpack. Any such 

belief also ended when defendant admittedly backed up knowing 

that he had run over Sanchez and had felt the car go over him.

We conclude that if defense counsel erred, the error was 

harmless, and defendant has thus failed to demonstrate 

ineffective assistance of counsel.

II. Dual use of facts to aggravate term

Defendant contends that the trial court improperly relied 

on the facts underlying the enhancement allegations to impose 

the high term, based on the provision in section 1170, subdivision 

(b), which provides that “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,” and on California Rules of 

7 We observe that at the sentencing hearing the court noted 

there was no evidence that a gun was recovered at the scene or in 

Sanchez’s backpack. The court also stated that the video did not 

show anything that could be construed as Sanchez reaching for 

something in the backpack.
17

Court, rule 4.420(c).

8 In particular, defendant contends that the 

court’s comments at sentencing indicate that it relied upon the

use of a car as a deadly weapon and upon Sanchez’s injuries in 

imposing the upper term, although the court also imposed a 

three-year great bodily injury enhancement under section 

12022.7, subdivision (a), and a one-year enhancement for the use 

of a deadly weapon pursuant to section 12022, subdivision (b)(1).

Respondent asserts that defendant has forfeited this issue 

by failing to object at the sentencing hearing. Because improper 

dual use is not a jurisdictional error, “[a] party in a criminal case 

may not, on appeal, raise ‘claims involving the trial court’s failure 

to properly make or articulate its discretionary sentencing 

choices’ if the party did not object to the sentence at trial. 

[Citation.] The rule applies to ‘cases in which . . . the court 

purportedly erred because it double-counted a particular 

sentencing factor . . . .’” (People v. Gonzalez (2003) 31 Cal.4th 

745, 751, quoting People v. Scott (1994) 9 Cal.4th 331, 353.) 

Defendant claims to have preserved the issue with an objection in 

his sentencing memorandum to the dual use of a car as a deadly 

weapon enhancement and as a factor in aggravation. However, 

defendant did not object to the dual use of facts underlying the 

great bodily injury enhancement. “Only a single aggravating 

8 California Rules of Court, rule 4.420(c) provides: “To 

comply with section 1170(b), a fact charged and found as an 

enhancement may be used as a reason for imposing a particular 

term only if the court has discretion to strike the punishment for 

the enhancement and does so. The use of a fact of an 

enhancement to impose the upper term of imprisonment is an 

adequate reason for striking the additional term of 

imprisonment, regardless of the effect on the total term.”
18

factor is required to impose the upper term . . . .” (People v. 

Osband (1996) 13 Cal.4th 622, 728.) Thus defendant has 

forfeited his challenge based upon facts relating to great bodily 

injury.

Regardless, the trial court cited many facts in aggravation, 

not just those supporting the two enhancements. The reviewing 

court looks at whether the trial court could have based the 

aggravating factor on facts other than those supporting the 

enhancement, and if so, the sentence may stand. (People v. 

Garcia (1995) 32 Cal.App.4th 1756, 1775.) Here, the court stated 

that it had reviewed the defense sentencing memorandum and 

then expressed many reasons for finding that granting probation 

was not justified. The court then applied those reasons and 

others to support the high term. In essence, the court expressed 

the intention to impose the high term on the ground that this was 

an aggravated attempted murder. The court found this case “as 

serious [as] you can get in terms of charge,” not just attempted 

murder but “an incredibly aggravated, violent attempted murder 

with a vehicle.” Thus the court considered, more than

defendant’s use of a car as a deadly weapon to inflict great bodily 

injury, but rather the extreme violence with which defendant 

committed his crime.

The sentencing court may appropriately base an 

aggravated term on facts surrounding the defendant’s crime that

exceed the minimum necessary to establish the offense or 

enhancement. (Cf. People v. Castorena (1996) 51 Cal.App.4th 

558, 561 [“‘while an element of this crime is gross negligence, 

defendant’s conduct exceeded even the word gross’”].) Here, the 

court acknowledged that some of the facts were already part of 

the offense and the enhancement allegations, but stated that far 
19

more facts were proven in this case than the minimum needed to 

establish an attempted murder, an intent to kill, or great bodily

injury. “Some physical pain or damage, such as ‘[a]brasions, 

lacerations, and bruising can constitute great bodily injury.’” 

(People v. Quinonez (2020) 46 Cal.App.5th 457, 464.) Here, the 

court listed Sanchez’s injuries depicted in photographs taken at 

the hospital, such as severe bruising and scrapes from the knees 

through the groin area and up through his torso, as well as the 

permanently dismembered testicle, which clearly exceeded

healable abrasions, lacerations, and bruising necessary to 

establish great bodily injury.

Great violence is a separate factor that may appropriately 

be considered in aggravation of a violent crime, where great 

violence is not an element of the crime. (See People v. Garcia

(1989) 209 Cal.App.3d 790, 794 [forcible rape]; Cal. Rules of 

Court, rule 4.421(a)(1).) Here, the trial court considered the 

extreme violence of defendant’s conduct, explaining that during 

trial there were comments indicating that defendant ran over 

Sanchez at least twice, although when viewing the surveillance 

video the court perceived wheels going over him at least three 

times and then dragging Sanchez for a period of time. The court 

noted that at “every step of the way [defendant] chose to make 

this situation worse and increase the violence.” Defendant was 

the aggressor in the fight, while Sanchez appeared to be acting 

defensively.

The court acknowledged that Sanchez was probably 

annoying and drunk, and that he made disparaging remarks 

about Florian, but “[n]one of that, in any way, justifies the 

defendant’s reactions thereafter.” The trial court observed that 

defendant could have left by backing out of his parking place and
20

turning toward the parking lot exit adjacent to his parking space, 

but he did not. Without disputing the jury’s verdict the court also 

pointed out that there was sufficient evidence to support 

premeditation and deliberation, which would have resulted in a 

life term; thus the verdict gave defendant a significant break.

In sum, the court did not rely simply on defendant’s use of 

his car as a deadly weapon or the infliction of great bodily injury 

on the victim to impose the high term, as defendant claims. We 

conclude that defendant forfeited at least one of his claims of dual 

use, and that in any event, the trial court did not err.

DISPOSITION

The judgment is affirmed.

________________________, J.

CHAVEZ

We concur:

________________________, Acting P. J.

ASHMANN-GERST

________________________, J.

HOFFSTADT