Filed 10/2/26 P. v. Foust CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B339789
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. VA157355)
CARL FOUST,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa S. Coen, Judge. Affirmed.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
A jury convicted defendant Carl Foust (defendant) of one
count of murder and two counts of attempted murder; the trial
court sentenced him to 147 years to life in prison. We are asked
to decide whether the trial court erred when it declined
defendant’s request to continue the preliminary hearing so he
could retain private counsel. We also consider several
sentencing-related claims: whether the rule defining aggravating
circumstances of a crime is unconstitutionally vague, whether
substantial evidence supports the jury and trial court’s findings
on circumstances in aggravation, and whether the trial court
erred in concluding defendant’s criminal conduct represented a
serious danger to society.
I. BACKGROUND
A. The Offense Conduct
On December 7, 2021, Brianna Zertuche (Zertuche) was
working as a sales associate at the Dream Burner smoke shop in
Bellflower. In addition to selling cigarettes, cigars, and smoking-
related paraphernalia, the store offered its customers the
opportunity to gamble by playing a “fruit machine,” which was a
“push button,” “Vegas-type” slot machine.
At 11:15 p.m., shortly before the smoke shop closed,
defendant entered the store. Zertuche recognized defendant from
prior visits, including one earlier that same day. Also present in
the store were several other people including Paul Santoyo
(Santoyo), who had recently been hired to provide security for the
store due to a string of recent robberies, and Monique Salcido
(Salcido), who recognized defendant as a fellow frequent customer
of the store.
2
As soon as defendant entered the smoke shop, he pointed a
nine-millimeter semi-automatic handgun at Zertuche and said,
“Give me the fuck’n money.” He grabbed Zertuche by the collar,
threw her to the floor, and repeated his demand: “Give me the
fuck’n money. Do you think I’m playing?” Immediately after
throwing Zertuche down to the ground, defendant fired five shots
from his handgun, striking three people.1 The shooting was
recorded by the store’s surveillance cameras.
One of the bullets grazed Santoyo’s left arm and another
punctured his left lung and passed through his aorta, killing him.
At least one bullet hit Zertuche, who had moved to shield her dog,
and the femoral artery in her right leg was severed. Salcido, who
pleaded with defendant not to shoot Zertuche again and told him
to simply take the money, was shot once in the left shin. After
the fifth shot, defendant continued to pull the gun’s trigger, but
Zertuche heard a “click, click, click” sound and no more bullets
were fired. Defendant then fled, roughly 14 seconds after first
entering the Dream Burner.
Zertuche and Salcido were transported to a local hospital
for treatment. While at the hospital, they separately identified
defendant as the shooter from photographic line-ups. Defendant
was arrested thereafter.
B. Defendant’s Request to Continue the Preliminary
Hearing to Retain Counsel
At the outset of the preliminary hearing, held in August
2022, defendant’s appointed attorney, Jason Sanabria (Sanabria),
1
A fourth bullet hit a display case, while the fifth was
believed by police to have struck the shop’s floor.
3
asked the court to continue the hearing for some unspecified
period because defendant’s sister “ha[d] hired private counsel.”
Neither defendant nor Sanabria offered any details about private
counsel, such as the attorney’s name, the name of his or her firm,
or the date on which he or she had been retained; in addition,
neither defendant nor Sanabria offered an explanation for why
the retained private attorney was not present at the hearing.
Instead, Sanabria explained only that he had advised his client
that he did not believe the court would grant a continuance
“because the witnesses have been here since yesterday.”
Sanabria stated he was “ready” to proceed with the hearing.
The trial court denied defendant’s request for a continuance
as untimely.2 Elaborating, the court stated: “Had information
been relayed or private counsel been able to contact the District
Attorney’s office a few days in advance to call the witnesses off, it
might have been more probable; but unfortunately, that’s not the
case. We don’t have an attorney who’s already been contacted for
this. [¶] This is simply a preliminary hearing. It’s a probable
cause hearing. It’s not a finding of guilt.” The court also
explained that the denial of defendant’s request “doesn’t mean
you can’t still [retain private counsel] later. Okay? [¶] There
will be a transcript of these proceedings, and that counsel will be
a[b]le to go from there from this transcript. Okay?”
Sanabria accordingly represented defendant at the
preliminary hearing and three witnesses testified: Zertuche,
Salcido, and a Los Angeles County Deputy Sheriff who had
2
A different bench officer than the one who presided over
defendant’s trial and imposed sentence held the preliminary
hearing.
4
responded to the shooting. Based on the testimony, a stipulation
regarding the findings of Santoyo’s autopsy, and crime scene
photographs, the trial court found sufficient cause to believe
defendant was guilty of Santoyo’s murder and the attempted
murder of Zertuche and Salcido.
After the preliminary hearing, there was no further effort
to substitute defendant’s appointed attorney and Sanabria
remained counsel of record throughout other pre-trial
proceedings, trial, and sentencing.
C. Defendant’s Trial, Conviction, and Sentencing
The amended information filed against defendant alleged
he personally used a handgun (Pen. Code,3 § 12022.5, subd. (a)) to
commit all three charged crimes (one count of murder and two
counts of attempted murder), inflicted great bodily injury in
committing the attempted murders (§ 12022.7, subd. (a)), and
sustained two prior serious or violent felony convictions. In
connection with each alleged offense, the amended information
alleged, pursuant to rule 4.421 of the California Rules of Court
(rule 4.421), the following factors in aggravation: the alleged
conduct involved great violence, great bodily harm, the threat of
great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, and callousness (rule 4.421(a)(1)); defendant
was armed with and used a weapon in committing the charged
crimes (rule 4.421(a)(2)); defendant’s violent conduct indicated a
serious danger to society (rule 4.421(b)(1)); defendant had
suffered convictions of increasing seriousness (rule 4.421(b)(2));
3
Undesignated statutory references that follow are to the
Penal Code.
5
and defendant had served a prior term in prison or jail (rule
4.421(b)(3)). The trial court bifurcated trial so the charged crimes
(and the rule 4.421(a) factors that did not refer to defendant’s
prior crimes) were determined separately from defendant’s prior
convictions and the rule 4.421(b) aggravating factors.
During trial, the prosecution relied primarily on the
surveillance video from inside the smoke shop and the testimony
of Zertuche and Salcido, each of whom described the shooting,
identified defendant as the shooter, and related the lingering
adverse effects of their gunshot wounds. Defendant did not put
on a defense case and instead advanced a mistaken identity
defense based on discrepancies between what the surveillance
video showed and other evidence.
In connection with the rule 4.421(a)(1) factor in
aggravation, the trial court instructed the jury, in pertinent part,
as follows: “To prove this allegation, the People must prove
that: [¶] 1. During the commission of the crimes, the defendant
used great violence, inflicted great bodily harm, threatened to
inflict great bodily harm, or committed other acts showing a high
degree of cruelty, viciousness, or callousness; [¶] AND [¶] 2. The
level of violence, bodily harm, threat of bodily harm, or cruelty,
viciousness, or callousness was distinctively worse than what was
necessary to commit the crimes.”
After three hours of deliberation, the jury found defendant
guilty as charged and found true the associated firearm and great
bodily injury enhancements. The jury also found true both rule
4.421(a) aggravating factors.
After defendant waived his right to a jury trial on the prior
conviction allegations and the three rule 4.421(b) factors in
aggravation, the prosecution presented evidence of defendant’s
6
criminal history in the form of certified records. Defendant did
not present any evidence.
The trial court found defendant had previously suffered two
strike convictions—a 1999 conviction for first degree residential
burglary (§ 459) and a 2019 conviction for attempted robbery
(§§ 211, 664)—and three other felony convictions: a 1999
conviction for taking another’s automobile without consent (Veh.
Code, § 10851), a 2013 conviction for use of violence, force, or
threats to deter an executive officer from performing his or her
lawful duties (§ 69, subd. (a)), and a 2021 conviction for carrying
a concealed dirk or dagger (§ 21310).
The trial court also found true all alleged rule 4.421(b)
factors in aggravation. In connection with the rule 4.421(b)(1)
factor, the court stated as follows: “I also find it to be true that
the defendant engaged in violent conduct in committing the
above offenses indicating serious danger to society . . . .” The
court then added, incorrectly, that the rule 4.421(b)(1) factor “was
also left to the jury, which they did find that also to be true.”
Defense counsel did not object to this misstatement that the jury
had also found the violent conduct presenting a serious danger to
society factor true.
The trial court sentenced defendant to a total of 147 years
to life in prison: 75 years to life for the murder of Santoyo (25
years to life, tripled pursuant to the Three Strikes law) plus four
years for the associated gun enhancement and 27 years to life for
each of the attempted murders of Zertuche and Salcido (the high
term of nine years to life, tripled pursuant to the Three Strikes
law) plus 14 years for the gun and great bodily injury
enhancements.
7
In pronouncing sentence, the court observed, “this case was
a very, very strong case because the video was very clear and the
conduct was very egregious” as the victims were “completely
innocent.” The court observed further that defendant had a “very
extensive criminal history. It goes back into the ‘90s, and there
has not been the significant period of time where [he] stayed out
of the criminal justice system as a defendant.”
II. DISCUSSION
Defendant’s preliminary hearing continuance argument for
reversal of his convictions at trial fails. Defendant has not
established there could be any possible prejudice from his
representation by Sanabria at the preliminary hearing (rather
than unidentified retained counsel); instead, he only argues—
incorrectly under settled law—that any error would be per se
reversible.
Defendant’s sentencing-related contentions also lack merit.
Precedent has rejected the very argument defendant advances
claiming rule 4.421 is void for vagueness (Chavez Zepeda v.
Superior Court (2023) 97 Cal.App.5th 65) and we reach the same
result. Substantial evidence supports the jury’s finding that the
offenses involved great violence and were distinctly worse than
what was necessary to commit the crimes; the prosecution’s
evidence established that, within seconds of entering the smoke
shop, defendant threw Zertuche to the ground at gunpoint, began
shooting essentially indiscriminately at everyone in the store,
and would have continued shooting but for a gun malfunction or
the lack of more ammunition. Substantial evidence also supports
the trial court’s rule 4.421(b)(2) finding that defendant’s crimes
were of increasing seriousness; the prosecution presented
8
uncontested evidence that defendant’s prior felony convictions
had escalated from crimes that did not involve the use of force or
fear (burglary) to those that did (resisting an executive officer
and attempted robbery). Finally, while defendant argues the
court did not itself find the rule 4.421(b)(1) factor in aggravation
true beyond a reasonable doubt because the court mistakenly
remarked the jury also found that factor true, that is belied by
the trial court’s statement at the outset of its ruling that
“everything,” i.e., all of its conclusions, were based on proof
beyond a reasonable doubt.
A. There Can Be No Prejudice from the Denial of
Defendant’s Request to Continue the Preliminary
Hearing to Retain Counsel
Our Supreme Court has held that challenges to
irregularities in preliminary examination procedure brought for
the first time after trial do not require reversal unless the
defendant demonstrates prejudice: “[W]hen a defendant
presents, by way of a pretrial writ petition, claims that establish
irregularities in preliminary hearing procedures, the court will
grant relief—for example, dismissal and remand for a new,
properly conducted preliminary hearing—‘without any showing of
prejudice.’ [Citation.] But when such claims are presented for
the first time on appeal, ‘irregularities . . . which are not
jurisdictional in the fundamental sense shall be reviewed under
the appropriate standard of prejudicial error and shall require
reversal only if the defendant can show that he was deprived of a
fair trial or otherwise suffered prejudice as a result of the error at
the preliminary examination.’ [Citation.]” (People v. Stewart
(2004) 33 Cal.4th 425, 461-462; accord, Reilly v. Superior Court
9
(2013) 57 Cal.4th 641, 653; People v. Pompa-Ortiz (1980) 27
Cal.3d 519, 530 [“[O]ur resolution is consistent with the United
States Supreme Court’s treatment of constitutional error at the
preliminary examination. Thus, even in a situation as extreme
as the denial of counsel, the U.S. Supreme Court has held that
the harmless error rule is applicable”].)
Here, defendant argues the trial court erred by declining to
continue the preliminary hearing to permit some unnamed
private attorney to appear and represent him. Even if true, that
is an argument that does not establish the preliminary hearing
court lacked jurisdiction in the fundamental sense. (Abelleira v.
District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 288
[“Lack of jurisdiction in its most fundamental or strict sense
means an entire absence of power to hear or determine the case,
an absence of authority over the subject matter or the parties”];
see also ibid. [a court lacks jurisdiction in a nonfundamental
sense where it “has jurisdiction over the subject matter and the
parties in the fundamental sense, [but] it has no ‘jurisdiction’ (or
power) to act except in a particular manner, or to give certain
kinds of relief, or to act without the occurrence of certain
procedural prerequisites”]; accord, People v. Ford (2015) 61
Cal.4th 282, 286-287.)
Defendant is accordingly required to establish how denial
of the requested continuance prejudiced his later conviction at
trial—represented by the same appointed attorney at the
preliminary hearing without change. He has not, nor could he.4
4
Defendant instead claims the asserted error is reversible
per se. As Stewart, Pompa-Ortiz, and other cases establish, that
is wrong.
10
As the preliminary hearing court explained, the preliminary
hearing was merely a probable cause determination while the
convictions at trial rest on the much higher beyond a reasonable
doubt determination by the jury. Defendant also does not claim
there was ineffective assistance of counsel at trial. There is
accordingly no reason why any error in declining to continue the
preliminary hearing should result in reversal of defendant’s
convictions at trial. (See, e.g., Pompa-Ortiz, supra, 27 Cal.3d at
530 [affirming judgment where the defendant made “no showing
that he was denied a fair trial or otherwise suffered prejudice
from the closure of the preliminary examination”].)
B. Rule 4.421 Is Not Unconstitutionally Vague
Rule 4.421 lists aggravating circumstances trial courts
consider when sentencing defendants under a triad of options.
(§ 1170, subd. (a)(3).) An aggravating circumstance is a fact that
makes the offense “‘distinctively worse than the ordinary.’”
(People v. Black (2007) 41 Cal.4th 799, 817, overruled on another
ground in People v. Wiley (2025) 17 Cal.5th 1069, 1085.)
The Chavez Zepeda court examined whether the terms
contained in rule 4.421 were too amorphous for a jury to interpret
and held that “the use of qualitative terms and the requirement
that an aggravating circumstance make the commission of the
offense distinctively worse does not render the factors in rule
4.421 unconstitutionally vague.” (Chavez Zepeda, supra, 97
Cal.App.5th at 71.) Chavez Zepeda explains that factfinders
applying the rule’s comparative “‘distinctively worse than the
ordinary’” standard, “have not imagined an abstract, ‘ordinary
case’ to determine whether a finding of an aggravating
circumstance[ ] is warranted by the facts of the case [before
11
them]” and instead “have considered whether the manner of the
crime’s commission was distinctively worse ‘when compared to
other ways in which such a crime could be committed.’” (Id. at
89.) Chavez Zepeda further observes “[w]hen appellate courts
have reversed an upper-term sentence on the ground that the
cited aggravating circumstance did not make the commission of
the crime distinctively worse, they have generally concluded that
the circumstance at issue was likely to be present in most any
instance of the offense or added little to the wrongfulness already
inherent in its commission.”5 (Id. at 90.)
We believe the result reached by the Chavez Zepeda court
is correct and we follow that decision in rejecting the similar
argument defendant makes here.
5
This is why defendant’s attempt to undercut Chavez
Zepeda by citation to Johnson v. United States (2015) 576 U.S.
591 is unavailing. Johnson held a residual clause in a federal
criminal statute was unconstitutionally vague because it required
“a court to picture the kind of conduct that the crime involves in
‘the ordinary case,’ and to judge whether that abstraction
presents a serious potential risk of physical injury.” (Id. at 596.)
Johnson, as Chavez Zepeda itself explains, “provides no basis to
conclude that aggravating factors are constitutionally
objectionable simply because they use qualitative standards like
‘great violence,’ ‘high degree of cruelty, viciousness, or
callousness,’ ‘particularly vulnerable,’ or ‘serious danger.’ (Rule
4.421(a)(1), (3), (b)(1).) As the [Johnson] court noted, in general
the application of such standards to ‘real-world conduct,’ as
opposed to an imagined ‘ordinary case,’ does not raise a
constitutional concern.” (Chavez Zepeda, supra, 97 Cal.App.5th
at 88, quoting Johnson, supra, at 604.)
12
C. The Jury’s Rule 4.421(a)(1) and the Trial Court’s
4.421(b)(2) Findings Are Supported by Substantial
Evidence
A court may impose an upper term only if aggravating
circumstances are found true beyond a reasonable doubt by the
trier of fact. (§ 1170, subd. (b)(1)-(2).) Only a single factor in
aggravation is needed to justify an upper term sentence. (People
v. Osband (1996) 13 Cal.4th 622, 728; accord, People v. Lynch
(2024) 16 Cal.5th 730, 764 [“nothing in section 1170(b)(2)
prohibits the court from imposing an upper term sentence based
on a single, properly proven aggravating circumstance if, in the
court’s discretion, that circumstance alone justifies a sentence
exceeding the middle term”].) “We review an aggravating factor
finding for substantial evidence.” (People v. Mendez-Torres (2025)
113 Cal.App.5th 1007, 1020.)
1. Substantial evidence supports the jury’s finding
that the offenses were “distinctively worse”
The evidence at trial established conclusively that the
manner in which defendant murdered Santoyo and attempted to
murder Zertuche and Salcido was distinctively worse when
compared to other ways in which the crime could have been
committed. (Chavez Zepeda, supra, 97 Cal.App.5th at 89.)
Nearly as soon as defendant entered the Dream Burner,
defendant threw Zertuche to the ground at gunpoint and—
without any provocation or even a discernable motivation—
defendant began shooting essentially indiscriminately. He shot
Zertuche while she was lying on the ground trying to protect her
dog. He shot Salcido, who merely pled with him not to shoot
Zertuche again. And he fatally shot Santoyo who was merely
13
trying to protect his girlfriend by shielding her. There was also
evidence that defendant attempted to keep shooting even after all
this but was foiled only by a gun malfunction or the lack of
additional ammunition. These facts adequately support the
jury’s finding that the crimes were committed in a distinctively
worse manner.
2. Substantial evidence supports the rule
4.421(b)(2) finding that defendant’s crimes were
of increasing seriousness
The certified records of defendant’s criminal history show
an increasing willingness by defendant to use or threaten
violence. Defendant’s first felony conviction was for first degree
burglary, a crime that does not involve the use of force or fear.
(§ 459; CALCRIM No. 1700; Magness v. Superior Court (2012) 54
Cal.4th 270, 273.) After convictions for vehicle theft and the
possession of cocaine for sale, defendant was convicted of using
force or threats to deter an executive officer from performing his
or her lawful duties (§ 69). Following that, defendant was
convicted of attempted robbery after he threatened to shoot a
convenience store clerk for refusing to cash a fraudulent lottery
ticket. Then, immediately prior to his arrest for the murder of
Santoyo and the attempted murders of Zertuche and Salcido,
defendant was convicted of carrying a concealed dirk or dagger
that he brandished at a victim after first punching him in the
face without provocation and knocking him to the ground. That
history is fully consistent with the trial court’s determination of a
criminal history increasing in seriousness.
14
D. There Is No Evidence the Trial Court Misapplied the
Burden of Proof When Making Its Rule 4.421(b)(1)
Finding
Defendant contends the trial court did not make its violent-
conduct-indicating-a-serious-danger-to-society rule 4.421(b)(1)
finding using the beyond a reasonable doubt standard of proof
because, he says, the court mistakenly believed the jury had
already found his conduct to represent a serious danger to society
and the court was somehow deferring to that finding. The record
does not bear this out.
The reporter’s transcript of the bench trial on defendant’s
prior convictions and the rule 4.421(b) factors does not contain
any affirmative statement by the trial court that it was
proceeding on a standard of proof other than beyond a reasonable
doubt. (People v. Thomas (2011) 52 Cal.4th 336, 361; accord,
People v. Ramirez (2021) 10 Cal.5th 983, 1042 [“Absent evidence
to the contrary, we presume that the trial court knew the law and
followed it”].) To the contrary, the court expressly stated at the
outset of its ruling that it was making all of its findings based on
proof beyond a reasonable doubt: “I do find based on the
standard of proof—that’s beyond a reasonable doubt, Mr. Foust—
for everything and that the allegations and convictions and priors
have been proven beyond a reasonable doubt to each and every
element.” Only after making its specific rule 4.421(b)(1) true
finding did the court observe, mistakenly and in passing, that the
jury had “also” found that factor true as well. That mistaken
observation does not establish there was any error in the court’s
ruling.
15
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
HOFFSTADT, P. J.
MOOR, J.
16