P. v. Lara

Filed 12/20/06 P. v. Lara CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for
publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT LEE LARA,
Defendant and Appellant.
B186598
(Los Angeles County
Super. Ct. No. VA081428)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael L. Schuur, Commissioner. Affirmed as modified.
Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and
Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
_______________

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Robert Lee Lara appeals from the judgment entered upon his conviction by jury
of making criminal threats and of assault with a deadly weapon, an automobile, in the
commission of which he personally inflicted great bodily injury. (Pen. Code, §§ 422,
245, subd. (a)(1), 12022.7, subd. (a).)1 He was sentenced to seven years in prison,
comprised of the upper term of four years with a three-year great bodily injury
enhancement for the assault, and to a concurrent two-year middle term for making
criminal threats.
Appellant contends (1) that the upper term sentence violated his constitutional
rights and Blakely v. Washington (2004) 542 U.S. 296, and the trial court abused its
discretion in imposing the upper term; and (2) that the trial court exceeded its
jurisdiction by entering a protective order pursuant to section 136.2. Respondent
agrees that the protective order was unauthorized, and we order that it be stricken. We
otherwise affirm.
FACTS
The evidence established that on February 4, 2004, after appellant and a
companion parked in front of the home of Marisa Valle (Valle), appellant made
threatening calls to Valle, stating that “we” were going to “get” her brother, George
Rodriguez (Rodriguez), “fuck him up,” and kill him. Appellant also told Valle that
she and her family were dead. Valle believed that appellant would carry out the
threats because she knew him to be violent and aggressive. She had dated him for a
few months in 2003 but had broken up with him after he tried to choke her and struck
her in the face during an argument. After that, he continued to call her, telling her that
he had seen her in various places and knew what she was doing. She did not wish to
resume the relationship and decided to break off all contact with him.
After appellant made the threats, Valle called the police. Rodriguez went to
appellant’s house and told him not to come to his and Valle’s home. Shortly
1 All further statutory references are to the Penal Code unless otherwise
indicated.

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thereafter, Rodriguez discovered that the window of his Chevy Tahoe had been
broken.
The next day, as Rodriguez was driving his son home from high school, he
drove by appellant’s house and saw appellant, who was driving his car out of his
driveway. Rodriguez gestured to indicate that he knew appellant had broken his
window. Appellant followed Rodriguez, then sped up and stopped two cars in front of
Rodriguez’s vehicle at an intersection. When the light turned green, appellant did not
move, but remained blocking the intersection. Appellant got out of his car and came
towards Rodriguez with a tire iron. Rodriguez was unable to drive away because his
Tahoe was blocked by other vehicles. He reached for one of his daughters’ baseball
bats in the back of his vehicle, got out, and chased appellant back to appellant’s car.
Appellant got into his car, made a U-turn, and drove straight at Rodriguez, striking
him in the leg with his car as Rodriguez attempted to get back into his own vehicle.
Appellant then called Valle and told her that her brother and her whole family were
dead.
As a result of the attack, Rodriguez suffered a fractured knee and fractured
finger. He had surgery during which a plate and bolts were placed in his leg. He had
an eight-inch scar and was on crutches for four to five months, and at the time of trial
he continued to limp and was in pain.
After the incident, Valle and Rodriguez stayed with friends for a few days
because they feared appellant. They changed their daily routines, completed the
installation of a security system with cameras at their home, and adopted a Rottweiler.
DISCUSSION
I. Appellant was properly sentenced.
In imposing the upper term for assault, the trial court found four factors in
aggravation and none in mitigation.2 Appellant contends that the imposition of the
2 The trial court found, as stated in the probation report, that the crime involved
great violence, great bodily harm, the threat of great bodily harm, or other acts

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upper term based on factors that were not found true beyond a reasonable doubt by the
jury, other than the infliction of great bodily injury, violated his rights to jury trial and
proof beyond a reasonable doubt under the Sixth and Fourteenth Amendments of the
United States Constitution, and violated Blakely v. Washington, supra, 542 U.S. 296
(Blakely) and United States v. Booker (2005) 543 U.S. 220. This contention must fail.
We need not decide whether, as respondent asserts, appellant’s claim has been
forfeited in the absence of any objection on this ground in the trial court. As appellant
acknowledges, his contention was rejected by the California Supreme Court in People
v. Black (2005) 35 Cal.4th 1238. In Black, the Supreme Court concluded that “the
judicial factfinding that occurs when a judge exercises discretion to impose an upper
term sentence or consecutive terms under California law does not implicate a
defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) We are bound by
this decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)3
Appellant further contends that the trial court abused its discretion in imposing
the upper term because it did not address or weigh the factors in mitigation.
Appellant’s sentencing memorandum listed several mitigating factors, including that
disclosing a high degree of cruelty, viciousness or callousness; the crime involved
multiple victims; appellant’s prior convictions or adjudications were numerous or of
increasing seriousness; and he was on probation or parole when the crimes were
committed.
In arguing that the trial court violated his constitutional rights, appellant asserts
that the trial court engaged in a prohibited dual use of facts with respect to the great
bodily injury enhancement, and that the multiple victim factor was inapplicable.
These claims of sentencing error have been forfeited because they were not raised in
the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353, 355.)
3 Appellant raises the issue to preserve his right to federal review. The United
States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005,
A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California
(Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct. 1329], on the issue of whether
Blakely applies to California’s determinate sentencing law.

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the crime was the product of his relationship with Valle and Rodriguez and was not
perpetrated against random victims; that, given the evidence that Rodriguez armed
himself with a bat before appellant struck him with his vehicle, appellant may have
believed in the need to defend himself; and that appellant suffered from a mental
illness.4 The trial court indicated that it had read the prosecutor’s sentencing
memorandum and appellant’s statement in mitigation, and asked if either counsel
wished to add anything. Neither party did so. The trial court then adopted the four
factors in aggravation set forth in the probation report and stated that there were no
mitigating circumstances.
Appellant points to the circumstance of his mental illness, as well as to the
evidence that Rodriguez had armed himself with a baseball bat before appellant struck
him with his car, in claiming that the trial court abused its discretion in failing to
address or weigh the factors in mitigation. However, this issue has been forfeited
because appellant failed to object on this ground at the sentencing proceeding. (People
v. Scott, supra, 9 Cal.4th at pp. 353, 355; People v. Kelley (1997) 52 Cal.App.4th 568,
582.) In any event, this claim lacks merit. The trial court stated it had read and
considered appellant’s statement in mitigation, and it is presumed to have considered
the relevant factors. (People v. Kelley, supra, at p. 582.) The trial court was not
required to state reasons for rejecting any factors in mitigation. (People v. Downey
(2000) 82 Cal.App.4th 899, 919.)
4 On two occasions prior to trial, defense counsel declared a doubt as to
appellant’s competency. The trial court found appellant competent to stand trial on
each occasion, based on reports submitted, respectively, by Dr. Kaushal Sharma and
Dr. Gordon Plotkin. Dr. Sharma, observing that appellant had twice previously been
hospitalized at Patton State Hospital pursuant to section 1370, concluded, based on his
prior examination of appellant on one of those occasions, that appellant was mentally
ill although not incompetent. Dr. Plotkin indicated that appellant had a mental
disorder but was not incompetent.

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II. The section 132.6 restraining order must be stricken.
On March 22, 2004, at the conclusion of the preliminary hearing, the trial court
issued a restraining order pending trial pursuant to section 136.2, protecting Valle and
Rodriguez for three years, through March 24, 2007. Trial commenced in September
2005, and appellant was sentenced to prison on October 6, 2005.
Appellant contends that the order was unauthorized and that the trial court
lacked jurisdiction to impose the order because the assault was perpetrated before the
commencement of criminal proceedings, without intent to interfere with the
proceedings, and therefore the facts failed to support the issuance of the order. He
further argues that the order was unauthorized because it was not limited to the
duration of the proceedings.
As respondent agrees, the purpose of the restraining order provided for in
section 132.6 is, as here relevant,5 to protect victims and witnesses in connection with
the criminal proceeding in which the restraining order is issued, to “preserv[e] the
integrity of the administration of criminal court proceedings and [to] protect[] those
participating in them.” (People v. Stone (2004) 123 Cal.App.4th 153, 159.) The
Legislature did not intend to authorize such orders beyond those proceedings. (Ibid.)
The trial court here therefore lacked authority to extend the restraining order until
March 24, 2007, long past the date the criminal proceedings concluded. Under these
circumstances, the order must be stricken.6
5 A section 136.2 order may be issued as a condition of probation. Appellant was
not granted probation.
6 We therefore need not address appellant’s claim that the evidence did not
support a finding of good cause for issuance of the restraining order in that there was
no good faith belief that harm to, or dissuasion of, a victim or witness in the criminal
proceeding had occurred or was reasonably likely to occur. (See People v. Stone,
supra, 123 Cal.App.4th at p. 160.)

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DISPOSITION
The judgment is modified to strike the restraining order issued pursuant to
section 136.2. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________, J.
ASHMANN-GERST
We concur:
____________________, Acting P. J.
DOI TODD
____________________, J.
CHAVEZ

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