Opinion
D070081
08-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALEXANDRE, Defendant and Appellant.
Michael Anthony Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD236372 ) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Michael Anthony Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Anthony Alexandre of inflicting injury to a cohabitant resulting in traumatic injury (Pen. Code, § 273.5, subd. (a); count 1); stalking (§ 646.9, subd. (a); count 2); false imprisonment by violence (§§ 236, 237, subd. (a); count 3); and attempting to dissuade a witness from testifying (§ 126.1, subd. (b)(1); count 4). The jury also found that Alexandre personally inflicted great bodily injury within the meaning of sections 12022.7, subdivision (a), 1192.7, subdivision (c)(8), and 12022.7, subdivision (e) as to count 1.
Statutory references are to the Penal Code unless otherwise specified.
The superior court sentenced Alexandre to prison for seven years four months.
Alexandre appeals, contending (1) the trial court erred in denying his motion to dismiss based on an alleged denial of his due process and speedy trial rights; (2) the trial court erred in imposing consecutive sentences for counts 2 and 3 without making a statement of reasons on the record; and (3) his trial counsel was constitutionally ineffective. We determine none of Alexandre's contentions have merit. Thus, we affirm.
FACTUAL BACKGROUND
On June 3, 2011, Elisabetta Mantuano and Alexandre, who were involved in a romantic relationship, met for dinner at a restaurant in Pacific Beach. At the dinner, Mantuano told Alexandre that she wanted to end their relationship, which prompted Alexandre to become angry and raise his voice. They left the restaurant and headed to Mantuano's car while Alexandre yelled at Mantuano.
Mantuano tried to get into her car, but Alexandre grabbed her shoulders and blocked her from opening the door. She yelled for him to leave her alone and that she wanted to leave. Mantuano told Alexandre she was going to call the police. Alexandre then grabbed her phone out of her hand. Mantuano was able to get inside her car, but Alexandre grabbed and pulled her hand to prevent her from starting the car, breaking Mantuano's finger. A bystander called 911, but Alexandre fled before police arrived.
In July 2011, after she discovered she was pregnant, Mantuano tried to mend her relationship with Alexandre. However, they continued to argue and Alexandre continued to be jealous of her other relationships and told her he doubted the baby was his.
On July 30, 2011, Alexandre began arguing with Mantuano over his feelings of jealousy. She asked him to leave and to "get out of [her] life." Alexandre refused to leave and when Mantuano tried to leave, he told her to sit on the bed and "calm down." Mantuano began screaming for him to leave, or to let her leave, and he told her that if she did not calm down he would hurt the baby or terminate the pregnancy himself. A neighbor called the police. Yet, when the police arrived, Alexandre had Mantuano pinned against the bed and threatened that if she answered the door, her life and the baby's life were finished. Mantuano could not answer the door and Alexandre did not leave the apartment that night.
The next day, Alexandre continued arguing with Mantuano, threatening her and refusing to leave. When she said that she was going to leave, he ripped her bag out of her hands and she ran to the door. He grabbed Mantuano and told her she could not leave. She went to her bedroom and tried to lock the door, but he punched the door, leaving a hole. As Mantuano tried to take cover on the floor by the bed, Alexandre pulled her out by her feet, lifted her up, and shook her. Mantuano successfully diffused the situation by calming down. As soon as Alexandre fell asleep, Mantuano left the apartment and called the police. When she returned to the apartment to wait for the police, Alexandre had left.
Between July 31, 2011 and August 30, 2011, Alexandre called Mantuano 50 or more times per day, texted her 20 or more times per day, and showed up uninvited to her apartment multiple times. Mantuano made it clear during this time that she no longer wanted any relationship with Alexandre.
On August 7, 2011, when Mantuano came home from Mass with her friend, Mathew Blackburn, Alexandre was inside the gated area of her apartment complex and asked to speak with her. Mantuano did not want to speak with Alexandre, but agreed so that he would not reveal her pregnancy to Blackburn. They went to her apartment, but Mantuano left her front door open. Blackburn, who knew Mantuano was afraid of Alexandre, remained nearby. Alexandre was furious that Mantuano was with a male friend and began raising his voice. Blackburn went into the apartment and Alexandre threatened him. Mantuano told Alexandre to leave, but he refused to do so until Blackburn threatened to call the police.
On August 11, 2011, Alexandre sent Mantuano a text message that said, "you want to be rude to me. You will watch me. You [sic] rude so I have no reason not to make you pay for all of the pain that you caused me. You're going to regret this for sure." Mantuano feared for her life. Alexandre showed up at her apartment 20 minutes later asking to look in her car for his cell phone charger.
On August 13, 2011, Blackburn escorted Mantuano to a Bank of America branch. As she walked up to the ATM, she saw Alexandre. She turned to go back to her car and Alexandre started yelling, asking who was with her. Alexandre told Blackburn that he was going to "ruin [his] life" and "you have no idea who I am. You are dead. I'll kill you." Alexandre did not leave until Mantuano and Blackburn told him they were going to call the police. That same day, Alexandre sent a text message to Mantuano that he had contacted her boss and that she would never work in the United States again. When she did not respond to his text message, he sent her a video of himself on top of a building, threatening to kill himself.
DISCUSSION
I
ALEXANDRE'S MOTION TO DISMISS
A. Alexandre's Contentions
Alexandre maintains the trial court erred in denying his motion to dismiss based on a violation of his due process and speedy trial rights, stemming from a four-year delay between the filing of the complaint and his arrest date. Alexandre does not discuss in detail the evidence of prejudice he offered to support his motion. Nor does he discuss any of the evidence the prosecution submitted to oppose the motion. Instead, Alexandre contends the trial correct incorrectly applied a preponderance of the evidence standard in determining that he had not established prejudice from the delay. Although we agree, in the context of a motion to dismiss, that a defendant need not show prejudice by a preponderance of the evidence to shift the burden of proof to the prosecution, we find no error here. Alexandre glosses over the fact that the court found his claims of prejudice to be speculative. In addition, Alexandre does not address the prosecution's evidence to explain the delay between the complaint and the arrest. As such, Alexandre has not shown that any reversible error exists.
B. Background
On September 7, 2011, a complaint was filed charging Alexandre with felony counts of corporal injury to a spouse or roommate, stalking, and false imprisonment by violence, menace, fraud, or deceit. An arrest warrant was issued the same day. A little more than four years later, on October 19, 2015, Alexandre was arraigned on the charges after being extradited from New York and picked up by investigators. The operative complaint was filed on November 30, 2015.
Shortly thereafter, Alexandre filed a motion to dismiss for denial of his speedy trial and due process rights. He argued he was prejudiced by the four-year delay between the original complaint and Alexandre's arrest. He asserted the delay "severely restricted" his "ability to locate witnesses and gather evidence." Alexandre also insisted that evidence had been destroyed or purged by law enforcement. Without the subject evidence, Alexandre maintained that he had been "precluded [from] presenting any information that might impeach or contradict Ms. Mantuano's allegations."
Alexandre pointed out that the June 3, 2011 incident occurred on an early Friday evening on Garnet Avenue in Pacific Beach, in an area known for heavy pedestrian traffic, shops, bars, and restaurants. Moreover, the altercation between Alexandre and Mantuano occurred in front of Bub's Bar and Grill (Bub's). An individual Alexandre identified as "Josh [Rab]" apparently called 911 the evening of the incident. When the defense investigator contacted Rab after Alexandre was arrested, Rab told her that he could not remember all the details of that evening because of the passage of time.
In addition, the defense investigator contacted "Rich," a manager at Bub's. Rich told the investigator that Bub's employment and scheduling records only date back to 2012, and no employees who currently worked at Bub's had been there since 2011. Alexandre therefore argued that, because of the passage of time, he was not able to track down the Bub's employee who contacted Mantuano right after her confrontation with Alexandre on June 3, 2011. Alexandre also said the passage of time made it impossible to interview other Bub's employees to determine who else might have witnessed the incident.
Alexandre additionally claimed to be prejudiced because a witness with whom Mantuano had talked after a confrontation between Alexandre and her on June 13, 2011 had moved out of the United States.
Alexandre also noted that the defense investigator could not locate any potential witnesses who might have information relevant to incidents that occurred on July 13, 30, and 31, 2015. Specifically, Alexandre observed that the investigator canvassed the apartment building where Mantuano used to live and talked with the property manager, but only one current resident lived at the apartments during the subject time frame and she did not remember Mantuano or Alexandre. Alexandre contends he thus was prevented from verifying or impeaching Mantuano's claims that Alexandre was yelling at her and she was screaming for help on July 13. In addition, Alexandre argues that the defense investigator also could not locate the woman who called 911 on July 30, 2011.
Alexandre stated he also was prejudiced because the defense investigator could not obtain any surveillance tape of the incident in front of a Bank of America ATM on August 13, 2011, because the bank did not keep footage from 2011.
In addition, Alexandre argued that law enforcement had purged the downloaded contents of Mantuano's cell phone that had been placed on a disc. Alexandre insisted that this purge made it difficult to prepare a defense to the stalking charge, which was "almost completely dependent on text messages and phone calls from Mr. Alexandre to Ms. Mantuano."
Finally, Alexandre contended he was "severely prejudice[d]" by the loss of audio recordings of the relevant 911 calls. However, he admitted that he possessed the dispatch printouts for the three calls. These dispatch printouts are the dispatcher's notes, but Alexandre emphasized that they do not include all the details of the call, including the demeanor of the caller.
In opposing the motion, the prosecution challenged Alexandre's conclusion that he was prejudiced by the delay. The prosecution noted that Rab was available to testify at trial and could be cross-examined by the defense. In addition, the prosecution emphasized that, although one of Mantuano's friends had moved out of the United States, the prosecution provided the defense with five other witness who were "aware of the tumultuous relationship between . . . Mantuano and [Alexandre]." In addition, the prosecution observed that the witness who moved out of the United States did not witness the June 13, 2011 incident and would not have been able to offer any testimony whatsoever regarding her observation of what occurred.
The prosecution also maintained that the lack of surveillance video of the August 13, 2011 incident did not prejudice Alexandre. Pointing out that Alexandre was not charged with a specific offense or assault in connection with his interaction with Mantuano on August 13 at the ATM, the prosecution identified a witness (Blackburn) who could testify about what he observed in front of the ATM on that date. Also, the prosecution stated that the subject incident was one of several incidents that supported the stalking charge. Thus, the prosecution argued that Alexandre was not prejudiced by the lack of any video footage of the August 13 incident.
Regarding the purged phone records, the prosecution argued that it had a copy of the "purged" records and had provided a copy to the defense prior to the preliminary hearing.
Finally, the prosecution noted that Alexandre was speculating regarding the content and impact of the missing recordings of the 911 calls.
In addition to arguing that Alexandre did not show any prejudice caused by the delay, the prosecution asserted that the delay was caused by Alexandre. To this end, the prosecution contended that a detective contacted Alexandre, informed him that a warrant for his arrest existed, and asked him to turn himself in. Alexandre refused and left California for New York. When his location was established, Alexandre was extradited to California and tried.
The trial court held a six-day hearing on Alexandre's motion to dismiss, where it heard testimony from various witnesses. In denying the motion without prejudice, the court made certain factual findings. For example, the court found that a detective contacted Alexandre and informed him that there was an arrest warrant for him and Alexandre needed to turn himself in.
The court also found that "not all reasonable efforts ha[d] been made . . . to locate" at least two of the witnesses who called 911. In addition, the court noted that it did not find any prejudice regarding the absence of these witnesses because "what the witness would testify to would be speculative[.]"
The court determined that there was no prejudice to Alexandre based on the defense being unable to track down a Bub's employee who might have contacted Mantuano right after the June 3, 2011 incident. The court found there was insufficient evidence that this employee intervened in the altercation between Mantuano and Alexandre, and it was mere speculation regarding whether this witness's testimony would benefit Alexandre.
In regard to the lack of any surveillance video of the August 13, 2011 incident, the court noted that Blackburn had more accurate recall than others as to that incident, specifically where the contact between Alexandre and Mantuano occurred. Based on Blackburn's testimony, the court determined that only one of the video cameras regarding the area on the night in question could have captured the incident on video. The court found that the absence of this video was not "actually prejudicial," referring to a claim of prejudice based on the missing footage as "speculation[.]"
Regarding the allegedly missing cell phone calls and text messages, the court again found any claim of prejudice related to the evidence was speculative. In addition, the court noted, to the extent the evidence involved Alexandre's cell phone, he had the ability to access texts, videos, and phone records for his cell phone. The court also noted that it was not clear if Alexandre pursued other available means to recover the evidence.
The court additionally concluded that Alexandre's claim that he was prejudiced by the missing 911 tapes was speculative. Further, the court stated that Alexandre was not prejudiced by the absence of the tapes.
The court also discussed the issue of fading memories of the witnesses. The court observed that fading memory impacts all witnesses, regardless of the amount of time that transpires. However, the court found that Alexandre did not indicate that any of the witnesses would have been able to offer exculpatory or beneficial testimony in his favor but for the passage of time. As such, the court concluded it did not "see[] actual prejudice as to [those] witnesses" based on the four-year delay.
The court summed up its view of Alexandre's claim of prejudice as follows, "[J]ust looking at what I have, that I've been presented at this particular point, I think as a whole the defendant's situation is not one where he has been actually prejudiced by the delay."
Despite finding that Alexandre was not prejudiced by the delay, the court analyzed the prosecution's explanation as to why the delay occurred. The court found that Alexandre was aware that an arrest warrant had been issued, and a detective contacted Alexandre and asked him to turn himself in. Alexandre did not do so. Also, the court observed that Alexandre traveled in the four years between the issuance of the complaint and his arrest. The record indicated that Alexandre was in Florida, New York, and California during the intervening four years. Thus, the court, although somewhat critical of law enforcement's effort to track down Alexandre, questioned whether a greater effort would have proved successful.
The court ultimately summed up its findings as follows:
"But the end result is, if I were to balance what I consider -- well, for purposes of our discussion, I'll call it minimal actual prejudice, because I don't think it's particularly major because of the reasons I've already stated. And the reasons for the delay, the result would still be the same. But I think at this point, in balancing all of the considerations and whether the defendant will receive a fair trial, I believe the defendant will receive a fair trial, and I'm going to deny the motion to dismiss for speedy trial, specifically the time period between the time that the case was issued and the warrant went out and the time that he appeared at his arraignment. I'm doing that for the reasons I've already stated."
After trial concluded, Alexandre renewed his motion to dismiss, but the court denied it.
C. Analysis
"A defendant seeking to dismiss a charge on [due process] ground[s] must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay." (People v. Catlin (2001) 26 Cal.4th 81, 107.) " 'In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]' " (People v. Morris (1988) 46 Cal.3d 1, 37, italics omitted; People v. Nelson (2008) 43 Cal.4th 1242, 1250 [prejudice must be affirmatively shown and cannot be presumed regardless of the length of the delay].) "Prejudice is a factual question to be determined by the trial court" and we defer to any underlying factual findings if supported by substantial evidence. (People v. Hill (1984) 37 Cal.3d 491, 499, citing People v. Cave (1978) 81 Cal.App.3d 957, 965.) "The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible to prepare a defense . . . ." (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1328.)
Here, Alexandre contends the trial court incorrectly applied the preponderance of the evidence standard in evaluating the existence and extent of any prejudice caused by the delay. As a threshold matter, we agree with Alexandre that a defendant, for purposes of a motion to dismiss, within the context of an alleged speedy trial violation, does not have to prove prejudice by a preponderance of the evidence. But there must be some evidence. (See People v. Morris, supra, 46 Cal.3d at p. 37; People v. Nelson, supra, 43 Cal.4th at p. 1250.) And in focusing on the burden of proof the trial court used, Alexandre ignores the fact that the trial court found his claims of prejudice speculative. In other words, the court concluded that Alexandre did not present evidence sufficient to show actual prejudice. As such, we determine the trial court did not find some evidence of actual prejudice. (Ibid.)
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) "The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record." (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
In the instant matter, Alexandre does not address the court's findings that the alleged prejudice was speculative. Instead, he bases his entire argument that the court's application of the improper burden of evidence warrants reversal. Nevertheless, this argument does not carry the day on the record before us.
At most, Alexandre provides us with a single paragraph in his opening brief that alludes to the prejudice he claims from the four-year delay. For example, he notes that the 911 records had been purged. Yet, Alexandre does not claim to know the substance of those tapes or how they would have impeached any of the witnesses. We agree with the trial court that any claim of prejudice based on the 911 tapes is speculative. (See People v. Alexander (2010) 49 Cal.4th 846, 875.)
Alexandre also claims that "any surveillance video from Bank of America that may or may not have captured the August [13], 2011 incident was not available." However, Alexandre's own description of this evidence underscores that any alleged prejudice based on its absence is speculative. He admits that the video may or may not have captured the incident. Further, he ignores the trial court's finding that Blackburn, an eye witness to the incident, could testify about what he observed. In short, any prejudice stemming from the missing surveillance video is speculative at best.
Alexandre additionally claims he was prejudiced because the defense investigator was unable to locate any witness who lived at Mantuano's apartment complex who had relevant information. Alexandre, however, is not aware of the existence of any such witness. He just claims the defense investigator was unable to find him or her. He does not claim to know the substance of this "missing" witness's testimony. There is no indication that any such witness would have provided exculpatory or beneficial testimony. In short, Alexandre has not shown that he was prejudiced by the absence of this witness because he does not know the substance of his or her testimony. This is not the case where a key eye witness with exculpatory testimony has died or disappeared during the delay period.
We also determine that substantial evidence supports the trial court's conclusion that Alexandre was not prejudiced by witnesses' fading memories. Initially, we observe that Alexandre neither discusses the testimony of any of these witnesses nor explains how their faded memory prejudiced him at trial. In fact, he does not even identify any of these witnesses in his opening brief. He merely argues, "[s]everal of the witnesses who were located had difficulty remembering details of the incidents they witnessed, or testified that their memory would have been better in the months following what they witnessed." He does not clarify what details these witnesses cannot recall and how their lack of recall prejudiced him. He simply concludes he was prejudiced. Such an assertion, without more, does not persuade us the trial court erred. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 250 [conclusory statements asserting faded memory of the events in question insufficient to support a finding of prejudice].)
Additionally, our review of the record finds substantial evidence to support the trial court's conclusion that Alexandre was not prejudiced by any witness's fading memory. Rab, the individual who called 911 on June 3, 2011, testified in great detail about what he observed on the subject evening. However, he could not recall certain aspects of the incident (e.g., how the car was parked, the appearance of the man and women who were arguing, or what was said between the man and woman). Rab also admitted that his memory was better closer to the June 3, 2011 incident. Nevertheless, we agree with the trial court that Rab's inability to recall certain details was not prejudicial to Alexandre.
Rab's wife Candice also testified about what she observed on June 3, 2011. She too provided a lot of information about the incident, but like her husband, she did not recall what the arguing couple looked like. Although she testified that she remembered "distress" in Mantuano's voice, she could not recall what was said. Like Rab, Candice admitted her memory was better nearer in time to the incident. However, these gaps in Candice's memory did not prejudice Alexandre, and Alexandre does not explain otherwise. As such, we agree with the trial court that Candice's inability to recall certain details did not prejudice Alexandre.
We note that, although Alexandre did not identify the witnesses, he does cite to testimony from two police detectives as examples of other witnesses with fading memories. Both witnesses were unable to recall specific details involving their investigation of the alleged offenses. For example, one detective could not recall knocking on Mantuano's door when he investigated a complaint. Nor could he remember the type of window he looked through or if he saw one or two people through the window. The other detective testified that he did not remember the subject case and his testimony was based on his habit and custom. Although Alexandre claims he was prejudiced by the fading memories of these detectives, he does not explain how or why. He simply offers the conclusion that he was. This is insufficient to show prejudice. (See Serna v. Superior Court, supra, 40 Cal.3d at p. 250.) --------
Alexandre claims he was prejudiced by the defense investigator's inability to track down a bouncer from Bub's who witnessed and "may have approached or intervened" during the June 3, 2011 incident. Nevertheless, the court found there was no evidence that the bouncer intervened. Further, Alexandre does not assert that the bouncer's testimony would dispute Mantuano's version of events or support Alexandre's position. Accordingly, we find substantial evidence supports the trial court's conclusion that Alexandre has not shown he was prejudiced by his inability to locate the bouncer.
For the reasons we discuss above, we conclude substantial evidence supports the trial court's determination that Alexandre did not present some evidence of actual prejudice.
In addition, Alexandre does not explain why the trial court was wrong to attribute some of the four-year delay to Alexandre's actions. Alexandre was aware of the arrest warrant for him and was asked to turn himself in. He did not do so, and instead, left California. Indeed, he was found in New York and was extradited to California so he could be tried in the instant matter.
In summary, Alexandre has not carried his burden of showing error. The trial court found his claims of prejudice were speculative. Alexandre does not explain why these findings are incorrect. Further, his limited discussion of the evidence allegedly showing prejudice only underscored the speculative nature of his claims of prejudice. The trial court did not err in denying the motion to dismiss.
II
ALEXANDRE'S SENTENCE
A. Alexandre's Contention
Alexandre maintains the trial court erred by imposing consecutive sentences on count 2 (stalking, § 646.9, subd. (a)) and count 3 (false imprisonment by violence, §§ 236, 237, subd. (a)) without making a statement on the record of its reasons. As we discuss below, we find this challenge forfeited by Alexandre's trial counsel's failure to object or otherwise argue consecutive sentences were unlawful. Anticipating possible forfeiture, Alexandre also insists his trial counsel was constitutionally ineffective for failing to object to the consecutive sentences. We conclude there is no basis for that claim on the record before us.
B. Background
Before Alexandre's sentencing hearing, the probation department submitted a report recommending, among other things, consecutive sentencing on all counts. The prosecutor's sentencing brief noted that the probation report listed numerous aggravating factors and no mitigating factors. Although the probation report recommended a sentence of 10 years, the prosecutor requested a sentence of eight years, asking the court to select the middle term of two years for counts 2 through 4 and run those sentences one-third concurrent to count 1. Alexandre submitted a sentencing memorandum arguing that he be granted probation.
At the sentencing hearing, the court denied Alexandre's request for probation. In doing so, the court explained:
"I cannot in good faith grant probation in this case for a variety of reasons . . . . He was on probation for a domestic violence case. It was charged in -- he pled out to -- as a misdemeanor. It was, though, significant. It was significant domestic violence conduct . . . and I'm going to call it a pattern, having to do with his pattern of action in escalating the domestic violence with a particular person. His technique, his approach was very similar to that that I saw with the case that we have here today. [¶] It is textbook domestic violence in terms of how he's manipulative and controlling, and it is not limited to just stalking because he does get physical and that's where it becomes a problem.
The court later added:
"And I just don't think he would follow any conditions of probation the way he should. I mean he was granted probation before. It was like pulling teeth to get him to do the misdemeanor. There's no guarantee he would even be accepted under interstate compact. Having him in San Diego would be a disaster. I just -- I cannot see anything in this case that makes it unusual that would cause me not to send him to state prison."
The court then sentenced Alexandre to prison for a total of seven years four months as follows: the middle term of three years on count 1, plus a three-year enhancement under section 12022.7, subdivision (a); one-third the middle term for count 2 (eight months); one-third the middle term for count 3 (eight months). The court ordered the sentence on counts 2 and 3 to run consecutively to the sentence on count 1. The court stayed the sentence for count 4 under section 654. Alexandre's trial counsel did not object the imposition of consecutive terms for counts 2 and 3.
C. Analysis
A trial court has broad discretion to impose consecutive sentences when a person is convicted for two or more crimes. (People v. Shaw (2004) 122 Cal.App.4th 453, 459; § 669.) For the first time on appeal, Alexandre argues that the trial court did not articulate its reasons for imposing consecutive sentences. However, the probation report clearly recommended the court impose consecutive sentences. Thus, Alexandre was on notice that consecutive sentences were not only possible, but recommended by the probation department. However, Alexandre did not address this issue in his sentencing memorandum. Instead, he argued probation was the appropriate punishment for his crimes. In addition, he did not challenge the imposition of consecutive sentences at his sentencing hearing, but instead, again argued that probation was appropriate. Because Alexandre did not challenge the imposition of consecutive sentences below, he has forfeited that issue here. (See People v. Scott (1994) 9 Cal.4th 331, 356 ["In sum, we hold that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal."].)
Nevertheless, to avoid forfeiture, Alexandre argues his counsel was constitutionally ineffective for failing to object at his sentencing hearing. To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) It is appellant's burden to prove the inadequacy of trial counsel, and that burden is difficult to satisfy on direct appeal. Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349 (Ray); People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.) We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437; see Ray, supra, at p. 349.)
Here, the record does not indicate that no rational tactical purpose for Alexandre's trial counsel's failure to object exists. We cannot ascertain with certainty why defense counsel focused on probation and mitigation instead of addressing the consecutive sentences issue. Perhaps she believed those were her strongest arguments and she did not want to detract from them by arguing that consecutive sentences were not warranted. It also is possible that defense counsel believed there was sufficient reason for consecutive sentences and did not see the benefit of making a meritless argument, especially considering the court's thorough discussion about why it concluded probation was not appropriate. (Cf. People v. Mitcham (1992) 1 Cal.4th 1027, 1080 ["Counsel's failure to make a meritless objection does not constitute deficient performance."].) In any event, the record here does not lead us to conclude that Alexandre's trial counsel did not have a rational tactical purpose for not objecting to or asking for additional explanation for the imposition of consecutive sentences for counts 2 and 3. (See Ray, supra, 13 Cal.4th at p. 349.)
Additionally, Alexandre has not shown that he was prejudiced by his counsel's failure to address the imposition of consecutive sentences. Prejudice is established if "there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) The trial court's decision to impose consecutive sentences was well within its discretion. (See § 669; People v. Shaw, supra, 122 Cal.App.4th at p. 459.) On the record before us, we find no indication that Alexandre was prejudiced by his counsel's failure to object to or challenge the imposition of consecutive sentences for counts 2 and 3.
The probation report concluded that no mitigating circumstances existed and recommended consecutive sentences for each count. Also, the court discussed the nature, seriousness, and circumstances of the offenses as reasons for denying probation, which are factors the court could properly cite and rely on in imposing consecutive sentences. (See Scott, supra, 9 Cal.4th at p. 350, fn. 12.)
Further, although the court did not list its reasons for imposing consecutive sentences at the time it pronounced the sentence, the record is replete with the court's reasoning why Alexandre should not receive probation, but instead, be sentenced to prison. For example, the court noted that Alexandre displayed a pattern of escalating domestic violence. The court described the victim's injury, noted Alexandre refused to come in after being contacted by the police, and concluded that it did not believe Alexandre would follow any conditions of probation. Indeed, the court concluded that it saw no reasons why Alexandre should not serve time in prison. These reasons support the imposition of consecutive sentences. (See Cal. Rules of Court, rule 4.421(a), (b); rule 4.425; People v. Coelho (2001) 89 Cal.App.4th 861, 886.) In addition, only a single aggravating factor is required to impose consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Coulter (1989) 209 Cal.App.3d 506, 516.) With this foundation in mind, Alexandre falls woefully short of showing he was prejudiced by the trial court's failure to challenge the imposition of consecutive sentences for counts 2 and 3.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR:
O'ROURKE, J.
DATO, J.