The opinion
Filed 6/21/21 P. v. Diaz CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B302784
(Super. Ct. No. 2015039117)
Plaintiff and Respondent, (Ventura County)
v.
GUSTAVO GUZMAN DIAZ,
Defendant and Appellant.
Gustavo Guzman Diaz appeals from the judgment
after the jury convicted him of attempted murder with
premeditation and deliberation (count 1, Pen. Code,1 §§ 664/187,
subd. (a)), kidnapping (count 2, § 207, subd. (a)), assault with a
deadly weapon (count 3, § 245, subd. (a)(1)), criminal threats
(count 4, § 422), and corporal injury to a spouse (count 5, § 273.5,
subd. (a)), and found true allegations that he used a deadly
weapon (§ 12022, subd. (b)(1)) and caused great bodily injury
1
All subsequent undesignated statutory references are to
the Penal Code.
(§ 12022.7, subd. (e)). The trial court sentenced Diaz to an
indeterminate sentence of seven years to life in state prison, and
a determinate prison sentence of 16 years, four months.
Diaz contends: (1) the evidence was insufficient that
the attempted murder was willful, deliberate, and premeditated,
(2) the trial court erred in permitting testimony of an
incompetent witness, (3) counsel rendered ineffective assistance,
and (4) the sentences for criminal threats and kidnapping must
be stayed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Diaz and J.P. were married for approximately three
years. During their marriage, Diaz accused J.P. of being
unfaithful and “always thought [she] was cheating on him.” His
jealousy sometimes led to violence. Their divorce was almost
final.
As J.P. drove to work between 4:45 and 5:00 a.m., she
noticed a white car following her. It coasted silently behind her
with the headlights off. Diaz was driving the white car. His
brother D.F. lay in the back seat so J.P. would not see him. Diaz
was armed with a knife.
When J.P. parked, Diaz got out of his car. As she
opened her car door, Diaz stood next to the door holding the
knife. He told her to stay in the car or he would kill her. She
climbed over the center console into the passenger seat.
Diaz got into the driver’s seat of J.P.’s car and sped
away. He was “driving crazy,” in and out of lanes. He said he
was going to kill J.P. and himself. He said their daughter would
be better off with his parents. He threw her wallet and phone out
the window. He held the knife throughout the drive.
Diaz asked J.P. for her boyfriend’s name and address,
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but she refused. He asked if J.P. had sex with her boyfriend.
When she said yes, Diaz repeated that he would kill her. Diaz
made a phone call and said, “Meet me where I used to work in the
nursery plant. [¶] . . . [¶] We’re going to have fun because this
bitch likes [sex].”
When the car stopped at a red light near a gas
station, J.P. opened the car door and attempted to get out. She
did so because she “knew he was going to kill me.” Diaz grabbed
her, pulled her back into the car, and stabbed her twice in the
back. He told her she “should have never done that.” As he
continued driving erratically, he stabbed her in the chest and
arms.
J.P. was scared and feared for her safety. She opened
the car door, jumped out of the moving car, and rolled onto the
street. She stood up and pounded on the side of a truck. She
screamed, “He’s trying to kill me, he’s going to come back, help,
let me in.” The driver let her into the truck and called 911.
Diaz sped off. The car was found abandoned about 15
miles from where she jumped out. The knife was found near the
road. Blood on the blade contained DNA matching J.P.
J.P. suffered knife cuts on her collarbone and five
stab wounds: two in her back, one in her chest, one near her left
underarm, and one in her right arm. She had head injuries and
body abrasions from jumping out of the car. At the hospital, she
was treated with stitches, staples in her head, and a chest tube
for a collapsed lung from a stab wound.
The trial court sentenced Diaz to an indeterminate
term of seven years to life for attempted murder (count 1), and a
determinate term of 16 years, four months, consisting of: five
years for kidnapping (count 2); eight months consecutive for
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criminal threats (count 4); enhancements for use of a deadly
weapon of one year each for counts 1 and 2, and eight months for
count 4; and great bodily injury enhancements of four years each
for counts 1 and 2. The court stayed sentences pursuant to
section 654 for assault with a deadly weapon along with its great
bodily injury enhancement (count 3), and corporal injury to a
spouse along with its deadly weapon and great bodily injury
enhancements (count 5).
DISCUSSION
Intent
Diaz contends the evidence was insufficient to
establish that the attempted murder was willful, deliberate, and
premeditated. This contention lacks merit.
Attempted murder is not divided into degrees.
However, if the trier of fact determines it is willful, deliberate
and premeditated, the punishment is increased to life in prison
with the possibility of parole after serving at least seven years.
(§§ 664, subd. (a); 3046, subd. (a); People v. Gonzalez (2012) 54
Cal.4th 643, 654.) We review the entire record in the light most
favorable to the judgment to determine if it contains
substantial evidence from which a reasonable trier of fact could
find the attempted murder was willful, deliberate, and
premeditated. (People v. San Nicolas (2004) 34 Cal.4th 614, 657-
658.)
“‘[W]ilful, deliberate, and premeditated killing [] is
proper only if the slayer killed “as a result of careful thought and
weighing of considerations; as a deliberate judgment or plan;
carried on cooly and steadily, [especially] according to a
preconceived design.” [Citation.]’” (People v. Anderson (1968) 70
Cal.2d 15, 26 (Anderson).) “[P]remeditation can occur in a brief
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period of time. ‘The true test is not the duration of time as much
as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be
arrived at quickly.’” (People v. Perez (1992) 2 Cal.4th 1117, 1127.)
Anderson described three categories of evidence
regarding premeditation and deliberation: (1) planning activity,
(2) motive, including the defendant’s prior relationship with the
victim, and (3) a manner of killing that demonstrates intent to
kill as part of a preconceived design. (Anderson, supra, 70 Cal.2d
at pp. 26-27.) The Anderson guidelines are merely descriptive
and are “intended only as a framework to aid in appellate
review.” (People v. Perez, supra, 2 Cal.4th at p. 1125.) They are
neither exclusive nor exhaustive and do not “define the elements”
of the crime. (Ibid.)
All three Anderson factors are present here. Diaz
planned the attack by arming himself with a knife. (People v.
Elliot (2005) 37 Cal.4th 453, 471.) He followed the victim in
predawn hours with his lights and engine off. He hid his brother
in the back seat to drive his car away after Diaz abducted J.P. in
her car. The moment he contacted her, he demanded at
knifepoint that she remain in her car.
The motive of jealousy was demonstrated by his
questions in the car about her boyfriend. He told her he was
going to kill her and that their daughter would be raised by his
parents.
The manner of killing showed a preconceived design.
Diaz concedes in his opening brief that he “carried out [his] intent
by bringing a knife and kidnapping [J.P.] at knife point so that he
could kill her.” He threw the victim’s phone out the window so
she could not summon help. He stabbed her in areas likely to
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strike vital organs. (See People v. Koontz (2002) 27 Cal.4th 1041,
1082 [premeditated deliberate murder where gunshot to vital
area of body and victim prevented from calling ambulance].)
Substantial evidence established that the crime was willful,
deliberate, and premeditated.
Competence of witness
Diaz contends that D.F. was not a competent witness
and the trial court erred in permitting him to testify. We
disagree.
D.F. was sworn as a witness and testified through a
Spanish-language interpreter. After he consulted with an
attorney, the court granted him immunity.
Based on an Individualized Education Program (IEP)
report from six years earlier, D.F.’s attorney expressed concern
regarding D.F.’s memory and whether he was “understanding
everything that’s been going on here.” But he added, “Our
interactions have seemed to be okay. He seems to understand
what’s going on.” The attorney stated that if D.F. were a criminal
defendant, he would not declare a doubt as to his competence
pursuant to section 1368.
The IEP report stated that D.F.’s cognitive
functioning was “within the low average range of nonverbal
cognitive ability[,] . . . fluid reasoning, memory, and processing
speed” and he was “able to formulate sentences up to five words
in length.” He was bilingual in English and Spanish and was in
special education classes.
D.F. testified he could not read. He graduated from
high school. He was employed at a nursery. He was confused
about a minute order regarding his appearance as a witness. He
explained that immunity meant “I don’t get incriminated if I
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speak in court.” He paused before answering some questions on
the stand.
The trial court denied defense counsel’s request to
appoint an expert to examine D.F.’s competence. The court found
him competent to testify. The court noted that there “may be
language barrier gaps” through the interpreter, that difficulty in
remembering events three years earlier was not unusual, and
with the exception of one nonsensical answer, the witness
answered questions to the extent he could recall.
D.F. testified that his “complete understanding” of
the oath was “[t]o testify” and to say “[h]ow everything happened,
how the story happened.” He testified that he was “here today to
tell . . . what happened.” He stated several times that he was
telling the truth.
The law presumes that every person is qualified to be
a witness. (Evid. Code, § 700.) “A person is disqualified to be a
witness if he or she is: [¶] (1) Incapable of expressing himself or
herself concerning the matter so as to be understood, either
directly or through interpretation by one who can understand
him; or [¶] (2) Incapable of understanding the duty of a witness to
tell the truth.” (Evid. Code, § 701, subd. (a).) We review a trial
court’s determination of competence for abuse of discretion.
(People v. Flinner (2020) 10 Cal.5th 686, 740 (Flinner).)
In People v. Lewis (2001) 26 Cal.4th 334, 360-361, the
court found no basis to conclude that a witness was incompetent,
even though he had “the intellect of a seven year old, he
expressed difficulty with complex questions and often responded
in incomplete, sometimes nonsensical, sentences.” (Id. at p. 361.)
The contention that his testimony was “unbelievable . . . was an
issue of credibility for the jury and not relevant to the issue of
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[his] competency.” (Ibid.)
The record here shows that D.F. was capable of
communicating. Inconsistent statements do not render a witness
incompetent. (Flinner, supra, 10 Cal.5th at p. 742.) “[T]he
deficiencies in [D.F.’s] capabilities as a witness [were not] hidden
from the jury, which was given an ‘ample basis upon which to
judge the reliability of [his] observations.’” (Ibid.)
The record also shows that D.F. understood his duty
to tell the truth. D.F. responded affirmatively to the oath to tell
the truth. He testified that his testimony was true. He
demonstrated that he knew the difference between the truth and
a lie by admitting that he did not tell detectives the truth at first
but later did so. The trial court did not abuse its discretion in
allowing D.F. to testify.
Ineffective assistance of counsel
Diaz contends that his trial counsel rendered
ineffective assistance when he failed to properly challenge D.F.’s
competence to testify. We are not persuaded.
Incompetence of counsel requires: (1) that counsel’s
performance was deficient, i.e., “whether, in light of all the
circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance” (Strickland v.
Washington (1984) 466 U.S. 668, 690), and (2) “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different” (id. at p. 694).
Neither prong has been shown here.
Diaz’s sole claim of ineffective assistance is that
counsel failed to ask D.F. if he understood the difference between
truth and a lie. Counsel would have a tactical reason to not ask
the question because the answer might be that the witness knew
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the difference. “[T]he manner of cross-examination [is] within
counsel’s discretion and rarely implicate[s] ineffective assistance
of counsel.” (People v. McDermott (2002) 28 Cal.4th 946, 993.)
Counsel challenged D.F.’s competence. He asked that
an expert evaluate D.F. He cross-examined D.F. about his
“cognitive disabilities,” problems processing verbal statements,
and “putting sentences together.” He asked the witness to
explain his understanding of the immunity agreement and of his
oath as a witness. He moved to strike the testimony and
attacked its credibility in closing argument. Diaz has not shown
that counsel’s performance was deficient or that, absent any
deficiencies, a different result was reasonably probable.
Multiple punishment
Diaz contends that sentences for kidnapping and
criminal threats are barred by section 654 and must be stayed.
He is incorrect.
“An act or omission that is punishable in different
ways by different provisions of law” shall not “be punished under
more than one provision.” (§ 654, subd. (a).) A defendant may
not be punished more than once for a “a single physical act,”
which “depends on whether some action . . . separately completes
the actus reus for each of the relevant criminal offenses.” (People
v. Corpening (2016) 2 Cal.5th 307, 313 (Corpening).) When the
facts are undisputed, the application of section 654 is a question
of law we review de novo. (Corpening, at p. 312.) Any factual
findings underlying the trial court’s ruling are reviewed
for substantial evidence. (People v. Washington (2021) 61
Cal.App.5th 776, 795.)
The trial court found the attempted murder and
kidnapping were separate acts not subject to section 654. After
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Diaz stabbed J.P, the kidnapping continued as Diaz kept driving,
presumably towards the nursery. (See People v. Burney (2009) 47
Cal.4th 203, 233-234 [kidnapping continues while victim remains
detained].)
A “course of conduct” consisting of more than one act
may result in multiple punishment if it reflects “multiple intents
and objectives.” (Corpening, supra, 2 Cal.5th at p. 311.) We
review for substantial evidence whether section 654 is factually
applicable to a series of offenses. (People v. DeVaughn (2014) 227
Cal.App.4th 1092, 1113.)
“[C]riminal acts committed pursuant to independent
multiple objectives may be punished separately even if they share
common acts or are part of an indivisible course of conduct.”
(People v. Surdi (1995) 35 Cal.App.4th 685, 689 [punishment for
kidnapping and mayhem not barred by § 654].) Here, substantial
evidence supports multiple objectives: to take J.P. to the nursery
so Diaz and another individual could “have fun” using her for sex;
and to kill J.P. Multiple punishment was also permitted because
the kidnapping continued after the stabbing and the acts “were
separated by periods of time during which reflection was
possible.” (Surdi, at p. 689.) Section 654 therefore did not bar
punishment for both attempted murder and kidnapping.
Nor did section 654 bar multiple punishment for
criminal threats. This case is like People v. Solis (2001) 90
Cal.App.4th 1002, 1022, which held that section 654 did not bar
consecutive sentences for making threats to kill the victims and
the arson of their apartment an hour later. Threats are “a crime
of psychic violence” separate from the physical violence inflicted.
(Solis, at p. 1024.) Threats may be separately punished from
physical abuse even if they are intended to keep the victim from
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fleeing the abuse. (People v. Mejia (2017) 9 Cal.App.5th 1036,
1046-1047.)
Separate enhancements were likewise properly
imposed for the great bodily injury enhancements because they
were based on infliction of different injuries. The jury found the
enhancement for attempted murder based on stab wounds and a
collapsed lung, and for kidnapping based on road rash and head
injuries.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
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Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Darden Law Group and Christopher A. Darden for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Scott A. Taryle and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.