Filed 8/31/26 P. v. Sairafe CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G064922
v. (Super. Ct. No. 24WF1131)
NOURAS JILAL SAIRAFE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Walter P. Schwarm, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christine Y. Friedman and Arlyn Escalante, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
A jury found appellant Nouras Jilal Sairafe guilty of unlawfully
driving a vehicle. (Veh. Code, § 10851, subd. (a).)1 In a bifurcated proceeding,
the trial court found true that Sairafe had suffered numerous prior
convictions (Cal. Rules of Court, rule 4.421(b)(2)), had served a prior prison
term (Cal. Rules of Court, rule 4.421(b)(3)), and had performed
unsatisfactorily on probation (Cal. Rules of Court, rule 4.421(b)(5)). The court
also found true that Sairafe had been convicted of two felonies and numerous
misdemeanors.
The trial court sentenced Sairafe to four years to be served in
county jail. The court suspended fines and fees pursuant to People v. Dueñas
(2019) 30 Cal.App.5th 1157. Sairafe timely appealed.
On appeal, Sairafe contends (1) there was insufficient evidence to
support his conviction, (2) the trial court violated his constitutional rights to
due process and a fair trial by failing to address the jury’s exposure to
prejudicial matters, and (3) the trial court erred in failing to consider a
mitigating factor in accordance with the provisions of Senate Bill 567 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (SB 567). We find no error and
affirm.
1 All further statutory references are to the Vehicle Code unless
otherwise indicated.
2
FACTS
In February 2024, M.G. borrowed his uncle’s vehicle to go to the
gym. When M.G. arrived at the gym, he put the vehicle keys inside his bag
and placed the bag inside an unlocked locker. After he finished exercising, he
returned to the locker and realized the vehicle keys were missing. M.G. then
went to the gym parking lot and saw his uncle’s vehicle was missing.
Immediately after, M.G. called the police and his uncle.
Later that afternoon, a Los Alamitos Police Officer was
dispatched to an area where a license plate reader had identified a stolen
vehicle. The officer began monitoring traffic to locate the stolen vehicle. When
the officer approached a four-way stop, he recognized a vehicle matching the
stolen vehicle description. The officer made eye contact with the driver,
Sairafe, who made an abrupt left turn past the officer’s vehicle. The officer
made a U-turn to get behind the vehicle and immediately began to follow it.
After a short time, Sairafe pulled the vehicle over and stuck his hands out of
the vehicle window. The officer approached the vehicle and conducted a
felony car stop during which he pointed his gun at Sairafe. He then ordered
Sairafe out of the vehicle.
After the officer placed Sairafe under arrest, he examined the
vehicle. The front license plate and hubcaps had been removed and were
inside the vehicle. He also observed groceries in the backseat of the vehicle.
The officer spoke to Sairafe about the vehicle and recorded the
conversation with a digital audio recorder. The officer asked Sairafe where he
got the vehicle. Sairafe responded: “It’s in, uh, I saw my home. My, my friend
was, it’s a chick. It’s, it’s like a trifecta.” The officer asked Sairafe what he
meant, and Sairafe said: “I left her at, I left her at the store right now. And I
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saw, I was like, no way. She got a car. And I mean, that’s what she did. So I
just pulled over.”
The officer indicated he was having trouble understanding and
asked again where Sairafe got the vehicle. Sairafe responded: “From her? It’s
her car.” The officer asked if it was “her” vehicle, and Sairafe confirmed.
When the officer asked what city he was in when he got the vehicle, Sairafe
said Long Beach. When the officer asked how long ago Sairafe got the vehicle,
Sairafe said “since this morning.” Sairafe asked whether the vehicle was
stolen, and the officer confirmed it was.
The officer then told Sairafe he had found a gym bag in the
vehicle that belonged to someone named Abdul Aziz Alcatani and asked
Sairafe who that was. Sairafe said it belonged to “her little friend.” Sairafe
denied knowing the vehicle was stolen and said he pulled over before the
officer turned his lights on because he “knew she called, but I was leaving the
[Ralph’s]” Sairafe stated “she” was not his girlfriend, but she was “a chick,
like a friend.” Sairafe explained, “over the last couple days,” “she was like,
[expletive] you,” so he “left the key in the middle of you just [expletive].”
Sairafe then said she “always tell[s] [him] to eat, come back and cool off.”
Sairafe further stated she was “[m]aking a scene” so he “took off” and was
going to call her back.
Later in the conversation, Sairafe stated the vehicle belonged to
someone named “Michelle.” He did not know her last name.2 When the officer
told Sairafe the person who had reported the vehicle was a “dude,” Sairafe
2 The officer never attempted to contact “Michelle” because he
had no information about her.
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said it was “Javi.” Sairafe said Javi was Michelle’s “little whatever he is.”
Sairafe stated he did not think Javi knew who he was. Sairafe said he was
“the guy . . . on the side.”
An August 2024 complaint charged Sairafe with driving or taking
a vehicle that was not his own (Veh. Code §10851, subd. (a)) and possession of
a controlled substance (Health & Saf. Code §11350, subd. (a)).
At trial, M.G.’s uncle testified he had only given M.G. permission
to drive his vehicle. He did not know any Michelle who would be driving a
vehicle, nor was he dating or in any kind of relationship with anyone named
Michelle at the time he lent M.G. his vehicle. M.G.’s uncle did not know
Sairafe, nor had he given Sairafe permission to drive his vehicle.
The jury convicted Sairafe of unlawful driving of a vehicle
(§10851, subd. (a)). In a bifurcated trial, the trial court found Sairafe had
suffered numerous prior convictions, had served a prior prison term, and had
performed unsatisfactorily on probation. The court thus sentenced Sairafe to
the upper term of four years in county jail. Sairafe timely appealed.
DISCUSSION
I.
SUFFICIENCY OF THE EVIDENCE
Sairafe argues insufficient evidence supports his conviction for
driving without consent because there was no evidence he had the specific
intent to deprive the owner of possession. We conclude the evidence was
sufficient and affirm the conviction.
A. Relevant Law and Standard of Review
In People v. Lara (2019) 6 Cal.5th 1128, 1135 (Lara), the court
explained section 10851 subdivision (a), “prohibits taking or driving a vehicle
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without the owner’s consent and with the intent to temporarily or
permanently deprive the owner of title or possession, [and] can be violated by
a range of conduct, only some of which constitutes theft.” (See § 10851, subd.
(a).)
A theft-based violation involves an unlawful taking, which “may
be accomplished by driving the vehicle away.” (People v. Garza (2005) 35
Cal.4th 866, 871.) This is distinguished from a posttheft driving violation,
which “consists of driving a vehicle without the owner’s consent after the
vehicle has been stolen, with the intent to temporarily or permanently
deprive the owner of title or possession. Where the evidence shows a
‘substantial break’ between the taking and the driving, posttheft driving may
give rise to a conviction under . . . section 10851 distinct from any liability for
vehicle theft.” (People v. Page (2017) 3 Cal.5th 1175, 1188–1189 (Page).)
Unlawfully driving or taking a vehicle in violation of Vehicle
Code section 10851, subdivision (a) is an “alternative felony misdemeanor[ ]”
(Lara, supra, 6 Cal.5th at p. 1131)—that is, “a ‘wobbler’ offense that may be
punished as either a felony or a misdemeanor.” (People v. Gutierrez (2018) 20
Cal.App.5th 847, 853.) “While a theft-based violation . . . may be punished as
a felony only if the vehicle is shown to have been worth over $950, a violation
committed by posttheft driving may be charged and sentenced as a felony
regardless of value.” (Lara, supra, at p. 1136, fn. omitted; see also Pen. Code,
§ 490.2, subd. (a).)
B. Standard of Review
In evaluating a challenge to the sufficiency of the evidence, we
“review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence—that is, evidence which
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is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v.
Johnson (1980) 26 Cal.3d 557, 578.) We “presume[ ] in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
C. Analysis
Sairafe first argues insufficient evidence supports a felony theft
conviction under section 10851 because the trial court did not instruct the
jury that it had to find the value of the vehicle was more than $950. As noted
above, section 10851 can be violated in one of two ways: (1) an unlawful
taking of a vehicle (i.e. vehicle theft), or (2) unlawful posttheft driving of a
vehicle. (§ 10851.) To find a defendant liable under section 10851 on a theory
of felony vehicle theft, the People are required to prove the stolen vehicle was
worth more than $950, and that it was taken with the intent to permanently
deprive the owner of its possession. (Page, supra, 3 Cal.5th 1175 at pp. 1187–
1188 (Italics added).) On the other hand, “‘“unlawful driving of a vehicle is
not a form of theft when the driving occurs or continues after the theft is
complete . . . . Therefore, a conviction under section 10851
[, subdivision] (a) for posttheft driving is not a theft conviction”’” (Lara,
supra, at p. 1136), and “a violation committed by posttheft driving may be
charged and sentenced as a felony regardless of value.” (Ibid., fn. omitted).
Here, the People argued only an unlawful driving theory to the jury and
explicitly explained it was not charging Sairafe with unlawful taking of the
vehicle. Additionally, the verdict form restricted the theory of Sairafe’s guilt
to “unlawful driving.” Because the jury convicted Sairafe of the unlawful
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driving of a vehicle, not a theft conviction, it was not required to find the
vehicle was worth more than $950.
Second, Sairafe argues the evidence showing he had the specific
intent to deprive the vehicle owner of possession or title to the vehicle was all
speculative. “‘Specific intent to deprive the owner of possession of his [vehicle]
may be inferred from all the facts and circumstances of the . . . case.’” (People
v. Green (1995) 34 Cal.App.4th 165, 181 (Green).) “[C]ircumstantial evidence
is as sufficient as direct evidence to support a conviction.” (People v. Bloom
(1989) 48 Cal.3d 1194, 1208.) The jury is entitled to “infer [the] defendant’s
motives based upon the totality of the evidence presented.” (People v.
Chubbuck (2019) 43 Cal.App.5th 1, 11, fn. omitted.) Here, Sairafe was driving
and in possession of the vehicle hours after it had been reported stolen.
M.G.’s uncle testified he had only given M.G. permission to drive his car the
day it was stolen. Additionally, M.G.’s uncle neither gave Sairafe permission
to drive the vehicle, nor did he know him. Moreover, Sairafe said he and
Michelle obtained the vehicle in Long Beach, the city where the vehicle was
stolen. Based on these circumstances, the jury could reasonably infer that
Sairafe possessed the specific intent of depriving the vehicle owner of
possession or title to the vehicle.
Third, Sairafe argues stopping the vehicle, even though the
officer had not activated the siren or lights, and putting both hands out the
window indicated no consciousness of guilt. He also argues his statement to
the officer explaining his possession of the vehicle was true. We agree with
Sairafe that these factors might have been favorable to his case if the jury
found them to be true. However, Sairafe presented the evidence and
argument set forth above, but the jury rejected it.
8
Fourth, Sairafe contends the officer failed to properly question
M.G’s uncle or investigate Sairafe’s statement. According to Sairafe, these
questions and investigation could have uncovered evidence that the woman
he borrowed the vehicle from, “Michelle,” went by another name, was
someone with whom M.G.’s uncle was romantically involved, and who had
ongoing permission to drive the vehicle. Sairafe’s arguments miss the mark.
Emphasizing what law enforcement failed to do does not determine whether
the evidence before us is substantial in establishing the two elements of
section 10851 beyond a reasonable doubt. Our Supreme Court has offered
that the reviewing court’s task in evaluating the sufficiency of the evidence is
not to weigh the evidence to determine the most likely interpretation, but
rather, “view the evidence and the reasonable inferences therefrom in the
light most favorable to the jury’s determination, taking at face value evidence
that is not inherently improbable, and presuming the existence of every fact
reasonably deduced from that evidence.” (People v. Navarro (2021) 12 Cal.5th
285, 306–307.) ““‘[I]f the circumstances reasonably justify the [conviction],
the opinion of the reviewing court that those circumstances might also
reasonably be reconciled with the innocence of the defendant will not warrant
interference with the determination.’”” (Green, supra, 34 Cal.App.4th at p.
180.)
Fifth, Sairafe argues the evidence shows he had the intent to
deprive the vehicle owner of possession only temporarily. This argument fails
because, as noted above, to establish a violation of section 10851, a defendant
must have the specific intent to “permanently or temporarily deprive the
owner of title or possession.’” (Green, supra, 34 Cal.App.4th at p. 180, italics
added.)
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Finally, Sairafe contends there was no evidence he had
knowledge the vehicle was stolen. “[K]nowledge that the vehicle was stolen is
not an element of the offense” but it is “one of various alternative factors
evidencing an intent to deprive the owner of title and possession.” (Green,
supra, 34 Cal.App.4th at p. 180.) However, as we have described above,
substantial evidence supports a conviction under section 10851.
For the reasons discussed above, we conclude that the jury’s
judgment here was rational and supported by substantial evidence.
III.
ARRESTING OFFICER’S TESTIMONY
Sairafe next alleges the trial court violated his constitutional due
process rights by failing to prevent the arresting officer from testifying about
his personal opinion and speculation. Sairafe contends the officer’s testimony
usurped the function of the jury in relation to the gang enhancements.
A. Relevant Law and Standard of Review
“Witnesses must ordinarily testify to facts, leaving the drawing of
inferences or conclusions to the jury or court.” (Froomer v. Drollinger (1962)
201 Cal.App.2d 90, 98.) A police officer, however, may give a lay opinion
about inferences he or she drew from observed facts. (People v. Navarette
(2003) 30 Cal.4th 458, 497.)
“[T]he admission of evidence, even if erroneous under state law,
results in a due process violation only if it makes the trial fundamentally
unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439; Estelle v. McGuire
(1991) 502 U.S. 62, 70.) “‘Only if there are no permissible inferences the jury
may draw from the evidence can its admission violate due process. Even
10
then, the evidence must “be of such quality as necessarily prevents a fair
trial.”’” (People v. Albarran (2007) 149 Cal.App.4th 214, 229.)
A trial court’s evidentiary rulings during trial are reviewed for an
abuse of discretion, and “an abuse of discretion occurs when the trial court
makes an error of law.” (People v. Yates (2018) 25 Cal.App.5th 474, 484–485.)
A court’s ruling “will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999)
20 Cal.4th 1, 9–10; see Cal. Const., art. VI, § 13.) A “‘miscarriage of justice’” is
shown where it appears “‘reasonably probable’” that the appellant would have
achieved a more favorable result in the absence of error. (People v. Watson
(1956) 46 Cal.2d 818, 836.)
B. Analysis
1. Felony Car Stop Testimony
Sairafe first contends the trial court erred in allowing the officer
to testify that he believed Sairafe was dangerous and violent. In support
Sairafe points to the following testimony:
“[Prosector]: So when you do a felony car stop, you will have guns
pointed and order the individual out of the car with guns pointed?
“[Officer]: That’s correct.
“[Prosecutor]: And is that common to do in calls like the ones you
responded to?
“[Officer]: Yes, it is.
“[Prosecutor]: So that’s standard operating procedure to do?
“[Officer]: Yes, it is.
“[Prosecutor]: And that was for, you said, potential officer safety?
11
“[Officer]: That’s correct.”
Sairafe misrepresents the record in stating the trial court allowed
the officer to testify he believed Sairafe was dangerous and violent. The cited
testimony did not focus on the specific interaction the officer had with
Sairafe. Rather, the officer testified about his general practice when
conducting felony car stops. In any event, Sairafe admits he did not object to
the above line of questioning. Thus, he has forfeited this issue. (People v.
Jasso (2025) 17 Cal.5th 646, 674 (Jasso), citing People v. Dykes (2009) 46
Cal.4th 731, 756 [“[N]umerous decisions by this court have established the
general rule that trial counsel's failure to object to claimed evidentiary error
on the same ground asserted on appeal results in a forfeiture of the issue on
appeal”].)
2. Hubcap and License Plate Testimony
Sairafe next points to a portion of the officer’s testimony about
the removal of the stolen vehicle’s hubcaps and front license plate. Sairafe
contends the testimony was, “in essence,” that he was guilty of theft since he
was the sole occupant of the vehicle, and the hubcaps were not on the wheels.
However, Sairafe recognizes he objected to this testimony and the trial court
sustained the objection.
Generally, we presume that the jury followed a court’s
instructions and admonitions, thereby avoiding prejudice to the defendant.
(See, e.g., People v. Avila (2006) 38 Cal.4th 491, 574; People v. Riggs (2008) 44
Cal.4th 248, 299; People v. Valdez (2011) 201 Cal.App.4th 1429, 1437.) “‘It is
only in the exceptional case that “the improper subject matter is of such a
character that its effect . . . cannot be removed by the court's admonitions.”’”
(People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404; see also NBC
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Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224
[presumption that admonitions cure improprieties “can be overcome only in
exceptional circumstances”].) Whether “exceptional circumstances” exist
“depends upon the facts in each case.” (People v. Allen (1978) 77 Cal.App.3d
924, 935.)
Here, immediately after the trial court sustained Sairafe’s
objection, it instructed the jury to disregard the stricken answer. Then, prior
to deliberations, the court instructed the jury with CALCRIM No. 104, which
told the jurors to disregard any testimony stricken from the record and not to
consider that testimony for any purpose. Based on our review, we have no
reason to believe the jurors did not abide by the admonition and follow the
instructions.
3. “Changed Story” Testimony
Sairafe next points to the officer’s testimony wherein he opined
Sairafe changed his story about who the registered owner of the vehicle was.
Like with the officer’s testimony about the hubcaps, Sairafe objected to this
testimony. The trial court sustained the objection and struck the answer.
Again, we have no reason to believe the jurors did not follow the court’s
instructions.
Saraife also cites the People’s closing statement, where the
People argued Sairafe “changed his story” and was “changing his story” about
how he allegedly knew M.G.’s uncle. Again, Sairafe misstates the record. In
its closing, the People did not refer to the officer’s testimony the trial court
had struck. Instead, the People cited the statements Sairafe had made during
his recorded conversation with the officer.
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4. Testimony about Arrest
Sairafe also argues the trial court improperly allowed the officer
to testify about his personal belief in Sairafe’s guilt. In support, Sairafe cites
the following line of questioning between the prosecutor and the officer:
“[Prosecutor]: [Y]ou ultimately arrested and charged [Sairafe] or
sought to charge him with a crime?
“[Officer]: Yes, I did.
“[Prosecutor]: What was based on that?
“[Officer]: That was based on me finding him as the driver and sole
occupant of a reported stolen vehicle.
“[Prosecutor]: Did you take his actions before he pulled over into
consideration?
“[Officer]: Yes, I did.”
At this point, Sairafe’s attorney objected on relevance grounds.
The trial court sustained the objection and struck the answer. After a
discussion in chambers where the prosecutor explained the rationale behind
its questioning and why it was relevant, the court again stated it would
sustain Sairafe’s objection. The court then struck the question regarding
whether the officer took Sairafe’s actions before he pulled him over into
consideration before arresting him. The record thus shows Sairafe’s
argument on appeal, that the court allowed the officer to testify about his
personal opinion of Sairafe’s guilt, is not supported by the record.
5. Testimony about Groceries
Sairafe contends the trial court improperly allowed the officer to
give opinion-based testimony about the groceries found in the back of the
vehicle. This argument also is not supported by the record.
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When going over the topic of the groceries found in the vehicle,
the prosecutor asked the officer: “Based on your observations, were you able
to get any indication on where those groceries were from?” (Italics added.)
The officer responded: “They were from a 7-Eleven.” When the prosecutor
asked how the officer knew that, the officer responded the groceries were
“stored inside of a handbasket that had 7-Eleven embossed on the side of it.”
The officer also explained he did not see any Ralph’s grocery bags. During
cross-examination, the officer testified some of the groceries appeared to be
branded items that said “7-Eleven” on them. Based on the record, it appears
the officer testified about what he observed, not his opinion on where the
groceries came from. Regardless, Sairafe admits he did not object to this
testimony, and thus, he has forfeited this argument on appeal. (Jasso, supra,
17 Cal.5th at p. 674.)
6. Cumulative Error
Lastly, Sairafe argues the trial court’s errors cumulatively led to
an unfair trial. However, we have found no errors, and therefore “there is no
prejudice to cumulate.” (People v. Jimenez (2019) 35 Cal.App.5th 373, 391.)
IV.
SENTENCING
Sairafe contends the trial court erred in imposing the upper term
sentence. We disagree.
A. Relevant Law and Standard of Review
In 2021, the Legislature approved SB 567, which made
significant amendments to the determinate sentencing law under Penal Code
section 1170, subdivision (b). “Under this change in law, a trial court ‘may
impose a sentence exceeding the middle term only when there are
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circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.’” (People v. Flores (2022) 73 Cal.App.5th 1032, 1038, fn. 10.)
Relatedly, Penal Code section 1170, subdivision (b)(6) now provides: “[U]nless
the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term if any of
the following was a contributing factor in the commission of the offense: [¶]
The person has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence.”
The California Rules of Court, which provide guidance to courts
in imposing a sentence, were also amended to conform to the new legislation.
Rule 4.420(d) now provides, in relevant part: “In selecting between the
middle and lower terms of imprisonment, the sentencing judge may consider
circumstances in aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The court may consider factors in
aggravation and mitigation, whether or not the factors have been stipulated to
by the defendant or found true beyond a reasonable doubt at trial by a jury or
the judge in a court trial.” (Italics added.) Consistent with this rule, this court
recently held that the imposition of the middle term does not require
aggravating factors to be proven beyond a reasonable doubt under Apprendi
v. New Jersey (2000) 530 U.S. 466. (People v. Hilburn (2023) 93 Cal.App.5th
189, 204.)
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A trial court’s sentencing decisions are reviewed for abuse of
discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371.)
B. Analysis
1. Factor in Mitigation
Sairafe first argues the trial court failed to consider a mitigating
factor under California Rules of Court, rule 4.423(a)(6). Specifically, Sairafe
contends the court failed to consider that he intentionally avoided harm to
any person or damage to property when he followed traffic laws, pulled over
before the officer activated his lights or sirens, and kept his hands outside of
the vehicle as instructed until backup officers arrived. Again, Sairafe
mistates the record.
The record shows the trial court carefully examined and
considered the circumstances of the crime and determined they were not
factors in aggravation. The court stated Sairafe’s crime did not involve great
violence, great bodily harm, or the threat of bodily harm. Moreover, the court
determined the crime did not disclose a high degree of cruelty, viscousness, or
callousness, and did not involve the use of a weapon. Sairafe compares his
circumstances to those in People v. Guerrero (2022) 76 Cal.App.5th 329
(Guerrero), where the trial court did not properly consider youth factors. (Id.
at p. 336.) Guerrero, is distinguishable because, unlike the case at hand,
there the extent of the trial court’s consideration was stating the defendant’s
age at the time of the offense and nothing else. (Id.at p. 337.)
2. Circumstances in Aggravation
Sairafe next argues the trial court improperly relied exclusively
on the circumstances in aggravation related to him instead of those related to
the crime. In support, Sairafe relies on Penal Code section 1170, subdivision
17
(b)(2), which states “The court may impose a sentence exceeding the middle
term only when there are circumstances in aggravation of the crime that
justify the imposition of a term of imprisonment exceeding the middle term
and the facts underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial. . . .” Moreover, Sairafe argues subdivision
(b)(3) of the statute does not indicate the court could consider his prior
convictions in imposing more than a middle term. Penal Code section 1170,
subdivision (b)(3) states “Notwithstanding paragraphs (1) and (2), 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. . . .”
In sentencing Sairafe to the upper term, the trial court explained
it relied on Sairafe’s significant prior record not on the current charge. The
court determined the factors in aggravation were Sairafe’s numerous prior
criminal convictions as an adult (Cal. Rules of Court, rule 4.421(b)(2)), his
prior prison term (Cal. Rules of Court, rule 4.421(b)(3)), and his
unsatisfactory prior performance on probation. (Cal. Rules of Court, rule
4.421(b)(5).) The court concluded none of the factors in mitigation applied.
(Cal. Rules of Court, rule 4.423(b).) In balancing the aggravating and
mitigating factors, the court sentenced Sairafe to the upper term of
imprisonment of four years in county jail.
In People v. Gonzalez 118 Cal.App.5th 926, 933, the defendant
made the same argument Sairafe makes now. He argued “[Penal Code]
section 1170, subdivision (b)(2) ‘sets a threshold requirement which must be
met before the upper term becomes an available option.’ Thereafter, ‘[i]f all
18
three terms are available, the court can consider prior convictions in making
its decision; if the only two sentencing options are the middle and lower
terms, the court can use prior convictions in selecting between the two.’”
(Gonzalez at p. 933, fn. omitted.) Like the Gonzalez court, “[w]e disagree with
[Sairafe]’s interpretation of [Penal Code] section 1170 and therefore reject
this argument. As we have already stated, subdivision (b)(3) provides:
‘Notwithstanding paragraphs (1) and (2), 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.”
(Italics added.) ‘[N]otwithstanding’ means ‘[d]espite; in spite of.’ (Black’s Law
Dict. (11th ed. 2019) p. 1281.) Thus, by its plain language, Penal Code section
1170, subdivision (b)(3) applies, despite the limitations set forth in Penal
Code section 1170, subdivision (b)(1) and (2), and authorizes a court to impose
an upper-term sentence based on a defendant’s prior convictions. (Gonzalez at
p. 933.)
DISPOSITION
The judgment is affirmed.
DELANEY, J.
WE CONCUR:
MOTOIKE, P. J.
MOORE, J.
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