P. v. Sartoresi

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Filed 5/16/07 P. v. Sartoresi CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
PIETRO G. SARTORESI,
Defendant and Appellant.
E040119
(Super.Ct.No. FVI 018458)
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Rodger Paul Curnow, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda
Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston
Bergman, Deputy Attorney General, for Plaintiff and Respondent.

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1. Introduction1
A jury convicted defendant of one count of attempted murder against Joseph
Mooyman; three counts of assault with a firearm against Mooyman, Hilda Franson, and
Susan Rios; and two counts of criminal threats against Franson and Rios. (§§ 664/187;
245, subd. (a)(2); 422.) The jury also found true various other special allegations and the
court found true the alleged prior convictions. (§§ 667.5, subds. (b)-(i); 1107.1, subds.
(a)-(d); 12022.5, subd. (a); 12022.53, subd. (d); 12022.7, subd. (a).) The court sentenced
defendant to state prison for a determinate sentence of 31 years eight months, and a
consecutive indeterminate term of 25 years to life.
On appeal, defendant contends the court erred by not instructing the jury on
attempted voluntary manslaughter based on the heat of passion. Defendant also
challenges the sufficiency of the evidence for convictions on counts 3 and 4, making
criminal threats to Franson and Rios. Finally, defendant urges there was sentencing error
and section 12022.53, subdivision (d) is facially unconstitutional.
We hold there was no evidence to support a voluntary manslaughter instruction;
the evidence was sufficient that defendant made criminal threats to Franson and Rios; the
aggravated and consecutive sentencing was proper under Cunningham v. California
(2007) 549 U.S. ___ [127 S.Ct. 856] and section 12022.53 is not unconstitutional. We
affirm the judgment.
1 All statutory references are to the Penal Code unless stated otherwise.

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2. Facts
Armed with a shotgun or rifle, defendant went to a house in Hesperia. Upon
entering, he pointed the firearm at Jason, one of the occupants. Defendant was shirtless
and the word “Redlands” was tattooed across his chest. He then knocked over a
computer in the dining room where another person, Julian was working. He went up to a
third person, Phillip, pointed the gun at him, then looked at Susan Rios and said, “You
better do your homework.” He pointed the gun at Rios from about six feet away and then
lowered it.
About 11:15 p.m., Franson, the owner of the house, came home from work. She
yelled at everyone to get out. Defendant raised the gun and pointed it at her from about
seven feet and asked who she was. Franson said she was the owner and kept yelling at
defendant. Defendant lowered the gun and approached Franson. Grabbing both her
hands, he apologized and walked backwards out of the house. He also warned, “Anyone
calling the police I will come back and kill you.” About half an hour later, Franson was
in her bedroom when she heard gunfire.
Later that night, Mooyman had come to the Hesperia residence to see Franson.
Mooyman was engaged in conversation in the front of the house with Franson’s daughter
and John Hanson. Julian and Jason passed by and ran in the house. John told Mooyman
some problems were happening. Someone said, “Oh, no, there he is.” A small, gray
hatchback car cruised by with several people occupying it. A person in the car and a
person in the yard yelled at one another. The car stopped just past the house and
defendant got out.

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Mooyman walked toward the back of the car to avoid a fight. Someone cried,
“He’s got a gun.” Mooyman saw muzzle flashes and heard gun fire. Mooyman took
shelter behind a Pontiac Firebird in the driveway. Near him, a number of shots spattered
a white Ford Bronco. Mooyman heard a second set of shots that was return fire from the
house. When Mooyman tried to get up, he realized he had been wounded. Defendant,
not the person returning fire, was the person who shot him. The shots directed at the
white Ford Bronco came from the house (the west) shattering the window and from the
street (the east) hitting the side of the vehicle.
Defendant was also wounded by gunfire. Both men were taken to the same
hospital. The bullet that hit Mooyman could not be removed because of its risky location
on top of the muscle between the heart and chest plate.
As defense evidence, Ronny Garcia testified that he was Mooyman’s friend and
Mooyman told him he had been shot by another friend, “Julian or some other guy.” On
cross-examination, Garcia said defendant had told him he had retaliated against “Jason or
John” for “pinn[ing] his kids up against the fence with a car or something like that.”
3. Instructional Error
Defendant first asserts it was reversible error for the trial court not to give an
instruction sua sponte on attempted voluntary manslaughter as a lesser included offense
of attempted murder against Mooyman. The only evidence defendant relies upon is
Garcia’s brief testimony about defendant’s children. Based on this evidence, we do not
agree with defendant that an attempted voluntary manslaughter instruction was clearly
supported by evidence.

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Two elements of heat of passion/voluntary manslaughter are not present in this
case: “First, the provocation which incites the killer to act in the heat of passion case
must be caused by the victim or reasonably believed by the accused to have been engaged
in by the [victim.] [Citations.]” (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-
1412.) There was no evidence at all Mooyman, an innocent bystander, had threatened
defendant’s children or that defendant reasonably believed he had done so.
Second, there was no evidence to show provocation was “such as to cause an
ordinary person of average disposition to act rashly or without due deliberation and
reflection. [Citation.]” (People v. Lujan, supra, 92 Cal.App.4th at p. 1412.) Based on
Garcia’s bare statement, there is nothing in the record about when defendant’s children
were purportedly threatened and when defendant subsequently confronted Mooyman on
the street. The threat could have occurred days or weeks before the shooting, meaning
defendant did not act rashly and instead had time to deliberate and reflect. In the absence
of evidence to support an attempted voluntary manslaughter instruction, no instruction
should have been given. (People v. Kelly (1990) 51 Cal.3d 931, 959.)
Furthermore, in view of the overwhelming evidence against defendant, we deem
any error harmless under any standard of review. (Chapman v. California (1967) 386
U.S. 18, 24; People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Watson (1956)
46 Cal.2d 818, 836.)
4. Sufficiency of Evidence
Defendant next challenges the sufficiency of the evidence on counts 3 and 4,
making criminal threats against Franson and Rios. (§ 422.) The reviewing court

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considers the evidence in the light most favorable to the judgment. (People v. Gaut
(2002) 95 Cal.App.4th 1425, 1430; People v. Perez (1992) 2 Cal.4th 1117, 1124.)
The five elements of the crime of making a criminal threat are set forth in People
v. Toledo (2001) 26 Cal.4th 221, 227-228: “In order to prove a violation of section 422,
the prosecution must establish all of the following: (1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great bodily injury to another
person,’ (2) that the defendant made the threat ‘with the specific intent that the statement
. . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that
the threat—which may be ‘made verbally, in writing, or by means of an electronic
communication device’—was ‘on its face and under the circumstances in which it [was]
made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for
his or her own safety or for his or her immediate family’s safety,’ and (5) that the
threatened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]”
It is not disputed that the first three elements were established by the evidence.
Defendant’s omnibus promise to kill anyone who called the police was made as a serious
death threat. Instead, defendant focuses on whether defendant’s threat caused sustained
and reasonable fear to the two victims. (In re Ricky T. (2001) 87 Cal.App.4th 1132,
1140; People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
We deem the evidence sufficient under the circumstances of this case. (People v.
Bolin (1998) 18 Cal.4th 297, 339-340; In re George T. (2004) 33 Cal.4th 620, 635;

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People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.) Defendant broke into the subject
residence late in the evening. His tattoo advertised a gang affiliation. He brandished a
gun at all the occupants. As he left, he warned he would return to kill anyone who called
the police. The victims were frightened and believed defendant was serious. The victims
did not call the police and Rios subsequently moved out.
Even though the threat was conditioned on the victims calling the police, it was
made under circumstances conveying “gravity of purpose and immediate prospect of
execution.” (People v. Bolin, supra, 18 Cal.4th at p. 340; People v. Dias (1997) 52
Cal.App.4th 46, 49, 51-53 [victim would be killed if she called the police].) The threats
made while brandishing a gun constituted sufficient evidence to support defendant’s
convictions for making criminal threats.
5. Upper-Term and Consecutive Sentencing
In calculating defendant’s sentence, the court imposed the upper term on count 1,
consecutive middle terms on counts 5 and 6, and the upper term for the section 12022.5,
subdivision (a), enhancement appended to counts 5 and 6. Defendant challenges the
upper terms and the consecutive sentences under Cunningham v. California, supra.
At the sentencing hearing, the court reviewed the probation report identifying the
following aggravating circumstances (Cal. Rules of Court, rule 4.421): “(a) Facts
relating to the crime include: [¶] (1) The crime involved great violence, great bodily
harm, and threat of great bodily harm. [¶] (2) The defendant was armed with or used a
weapon at the time of the offense. [¶] (b) Facts relating to the defendant include:[¶] (1)
The defendant has engaged in violent conduct, which indicates a serious danger to

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society. [¶] (2) The defendant’s prior convictions as an adult are numerous and of
increasing seriousness. [¶] (3) The defendant has served prior prison terms. [¶] (4)
The defendant was on a grant of parole when the crime was committed. [¶] (5) The
defendant’s prior performance on probation and parole was unsatisfactory.” There were
no mitigating circumstances. (Cal. Rules of Court, rule 4.423.)
As to the facts pertaining to consecutive rather than concurrent sentences, the
probation report identified these facts: “The crimes and their objectives were
predominantly independent of each other. (2) The crimes did involve separate acts of
violence or threats of violence. (3) The crimes were committed at different times or
separate places, rather than being committed so closely in time and place as to indicate a
single period of aberrant behavior.”
In pronouncing sentence, the court expressly commented on defendant’s past
history of violent, criminal, and escalating behavior. The court found defendant had
served prior prison terms and was on parole at the time of the present offenses, justifying
a harsher, rather than a more lenient, sentence.
a. Forfeiture
The People contend that because defendant failed to object in the trial court on the
basis now urged on appeal, he has forfeited any challenge based on Blakely v.
Washington (2004) 542 U.S. 296 (Blakely). (See People v. Hill (2005) 131 Cal.App.4th
1089, 1103 (Hill) [holding that a Blakely challenge was forfeited by the defendant’s
failure to raise it in the trial court].)

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We reject this forfeiture argument. Unlike the defendant in Hill, supra, 131
Cal.App.4th at page 1103, who waived a Blakely challenge by failing to raise it at his
sentencing which occurred after Blakely but before People v. Black (2005) 35 Cal.4th
1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [127 S.Ct. 1210, 167
L.Ed.2d 36, 2007 WL 505809] (Black), defendant was sentenced on February 24, 2006,
after Black was decided on June 20, 2005. Therefore a Blakely objection would have
been futile under controlling law which the court was compelled to follow. Under such
circumstances, defendant did not forfeit the issue. (People v. Chavez (1980) 26 Cal.3d
334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th
780, 784-785.)
Even if defendant forfeited the issue, to forestall any claim of ineffective
assistance of counsel based on failure to raise a timely objection, we will address the
issue on the merits. (People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
b. Consecutive Sentencing
As stated in Cunningham, California’s determinate sentencing law (DSL) and “the
rules governing its application, direct the sentencing court to start with the middle term,
and to move from that term only when the court itself finds and places on the record facts
-- whether related to the offense or the offender -- beyond the elements of the charged
offense.” (Cunningham, supra, 127 S.Ct. at p. 862); § 1170, subd. (b); California Rules
of Court, rule 4.420(a).) Cunningham rejected this procedure, holding that “under the
Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must

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be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by
a preponderance of the evidence.” (Cunningham, supra, 127 S.Ct. at pp. 863-864.)
Defendant asserts that under Cunningham, supra, 127 S.Ct. at pages 863-864,
imposition of consecutive terms for counts 5 and 6 violated the Sixth and Fourteenth
Amendments to the United States Constitution, as interpreted in Blakely, supra, 542 U.S.
at pages 303-304. But, as explained in People v. Hernandez (2007) 147 Cal.App.4th
1266, 1270 (Hernandez), “Cunningham did not address the constitutionality of the DSL
pertaining to a trial court’s decision to impose concurrent or consecutive sentences. It did
not mention, let alone expressly overrule, the California Supreme Court’s decision that
‘Blakely’s underlying rationale is inapplicable to a trial court’s decision whether to
require that sentences on two or more offenses be served consecutively or concurrently.’
(People v. Black, supra, 35 Cal.4th at p. 1262, vacated in Black v. California (Feb. 20,
2007) ___ U.S. ___, 127 S.Ct. 1210, 167 L.Ed.2d 36 [2007 U.S. Lexis 1856].)”
In rejecting the defendant’s contention that he was entitled to a jury determination
of the facts upon which the trial court relied to impose consecutive sentences, the
Hernandez court explained that “‘While there is a statutory presumption in favor of the
middle term as the sentence for an offense [citation], there is no comparable statutory
presumption in favor of concurrent rather than consecutive sentences for multiple
offenses except where consecutive sentencing is statutorily required. The trial court is
required to determine whether a sentence shall be consecutive or concurrent but is not
required to presume in favor of concurrent sentencing.” [Citation.]” (Hernandez, supra,
147 Cal.App.4th at p. 1270, quoting People v. Reeder (1984) 152 Cal.App.3d 900, 923.)

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Defendant therefore “does not have a legal right to concurrent sentencing, and as the
Supreme Court said in Blakely, ‘that makes all the difference insofar as judicial
impingement upon the traditional role of the jury is concerned.’” (Hernandez, supra, at
p. 1271, quoting Blakely, supra, 542 U.S. at p. 309.)
Accordingly, a jury trial was not required as to the factors the trial court relied on
in imposing consecutive terms on counts 5 and 6.
c. Aggravated Sentences
Citing Cunningham, supra, 127 S.Ct. at pp. 860, 864-871, defendant contends his
aggravated sentence should be reversed because the trial court imposed aggravated terms
based on facts not found by the jury.
When imposing the aggravated term on count 1 and the enhancement appended to
counts 5 and 6, the trial court relied on factors which, under Blakely, supra, 542 U.S. at
pp. 303-304, and Cunningham, supra, 127 S.Ct. at pp. 863-864, required true findings by
the jury that the crime involved great violence, great bodily harm, and threat of great
bodily injury (GBI) and defendant used a weapon. But this court cannot rely on the jury
findings of GBI or use of a weapon since those findings were either elements of
defendant’s crimes or used to impose enhancements and thus were not available for use
as aggravating factors. (People v. Hill (1994) 23 Cal.App.4th 1566, 1575.) Therefore,
under Cunningham, supra, 127 S.Ct. 856, the trial court erred in imposing the aggravated
terms based on factors which should have been decided by the jury.
An exception, however, exists for facts pertaining to the defendant’s recidivism.
The United States Supreme Court has held that a jury is not required to determine the

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facts of the defendant’s prior conviction specifically or facts related to the defendant’s
recidivism in a broader sense. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 489,
citing Almendarez-Torres v. United States (1998) 523 U.S. 224; see also People v.
Thomas ( 2001) 91 Cal.App.4th 212, 222-223; People v. Banks, 2007 WL 1111849 (April
13, 2007).
In this case, the trial court relied on defendant’s recidivism in making its
sentencing decisions. The court agreed with the probation officer’s findings and cited the
reasons stated in the probation report. The court specifically noted defendant’s prior
convictions and the increasing seriousness of his crimes. (See People v. Sanchez (1982)
131 Cal.App.3d 718, 738-739; People v. Pinon (1979) 96 Cal.App.3d 904, 911.) The
facts pertaining to defendant’s recidivism alone were sufficient to support the trial court’s
selection of the upper terms. Because a single valid factor in aggravation is sufficient,
the court’s reliance on other facts was harmless beyond a reasonable doubt. (See People
v. Osband (1996) 13 Cal.4th 622, 728; People v. Forster (1994) 29 Cal.App.4th 1746,
1759.) A valid factor in aggravation means remand is unnecessary. (See Forster, supra,
at p. 1759.)
d. Harmless Error
In the alternative, the People argue that any error in imposing an aggravated
sentence was harmless error because there was overwhelming or uncontradicted evidence
of the aggravated factors relied on by the court. The People argue that since the jury
would have found at least one of the aggravating circumstances true beyond a reasonable
doubt, there was no prejudice. (Chapman v. California (1967) 386 U.S. 18, 24;

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Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2553].) Notwithstanding
this contention, however, we have determined that the recidivism factors allowed the
court to impose the upper term.
6. Section 12022.53, subdivision (d)
The court imposed a nondiscretionary enhancement of an additional and
consecutive indeterminate prison term of 25 years to life for using a gun to cause great
bodily injury. (§ 12022.53, subd. (d).) Defendant argues the statute is facially
unconstitutional because it violates the prohibition against cruel and/or unusual
punishment. He reasons the enhancement is unconstitutional because the sentence is
harsher than the sentence of 18 years2 for the underlying crime and longer than if he had
used a knife to cause death or more severe injuries.
Defendant acknowledges the weight of authority that has consistently rejected this
constitutional challenge to section 12022.53, subdivision (d): “If 50 years to life for
stealing $153 worth of videotapes is not cruel and unusual punishment, [fn. omitted]
neither is any sentence which could legally be imposed here.” (People v. Riva (2003)
112 Cal.App.4th 981, 1003; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212-1216;
People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19; People v. Martinez (1999) 76
Cal.App.4th 489, 493-496.) We agree with those courts and reject defendant’s contention
for the same reasons as they express quite eloquently.
2 The upper term of nine years was doubled to 18 years because of a prior strike.

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7. Disposition
We affirm the judgment in its entirety.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Hollenhorst
Acting P. J.
s/Miller
J.

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