Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. FSB059697 of San Bernardino County, Bryan Foster, Judge.
Cara DeVito, 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, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Alberto Oropeza Delgadillo helped plan and murder his wife’s cousin and the cousin’s friend. A jury found him guilty of two counts of first degree murder. The trial court imposed consecutive terms of 25 years to life in prison. Delgadillo’s sole contention on appeal is the case must be remanded for resentencing because the court either misunderstood the extent of its discretion, or abused its discretion when it imposed consecutive rather than concurrent terms. We conclude the claim lacks merit. The judgment is affirmed.
I
On December 18, 2006, Delgadillo picked up his cousin, Salvador Felix and Felix’s friend, Pedro Sanchez, from a liquor store and agreed to drive them to a family gathering. Instead, he drove to a dark, secluded area near Yucaipa. At approximately 8 p.m., Delgadillo let Felix and Sanchez out of his van to urinate by the side of the road. “Javier” (also known as “Chinola”), who had been hiding in the van, jumped out and shot both men in the head at close range.
Chinola’s last name is not contained in our record.
A resident in the area heard the gunshots and saw a van parked by the side of the road near where he heard the shots. He saw the van’s headlights turn on and the vehicle made a U-turn towards the freeway. The police found a loaded.25 caliber Beretta handgun in Felix’s sock. Both victims had alcohol and drugs in their bodies when they were killed.
One week after the murders, Delgadillo telephoned Detective Neal Rodriguez and requested information on the status of the investigation. He misidentified himself as Felix’s brother. His deception was uncovered because the detective had already spoken to Felix’s brother, and his cellular telephone caller identification feature revealed Delgadillo was the caller. Rodriguez asked to meet with Delgadillo in person. Delgadillo replied he could not be contacted, but he would call the detective when he was ready to be interviewed.
Rodriguez researched and discovered Delgadillo’s home address in Lynwood. He contacted Delgadillo at the house within a few hours of receiving Delgadillo’s telephone call. Delgadillo admitted he had called the detective, and he also revealed he had driven Felix and Sanchez from a friend’s house to a liquor store on the night they were killed. Delgadillo agreed to be interviewed at the sheriff’s station, where he admitted to participating in the double murders. His story changed several times during the interview, but in essence he claimed Chinola fired the shots and forced Delgadillo to participate under duress. Delgadillo claimed Chinola threatened to harm his family if he did not help. He stated Chinola held a gun to his head and forced him to drive the van.
The police were unable to find or identify Chinola. However, they discovered a van registered to Delgadillo matched the description of the van seen driving away from the dead bodies. Officer David Burgess located the van in Lynwood and while he was in the process of having it towed, Delgadillo’s wife asked if she could retrieve some of her belongings. The detective said she could not. During a later search of the van, Rodriguez found family items such as grocery bags, clothing, and a child’s car seat. However, in a rear compartment, he uncovered a black duffel bag containing cocaine and an unregistered gun. The information charged Delgadillo with two counts of first degree murder and several firearm enhancement allegations.
At trial, Delgadillo had several witnesses testify on his behalf. Francisco Javier Felix (Javier), who was related to both the victim and Delgadillo’s wife, testified he had known Delgadillo for seven years and he believed Delgadillo was neither violent nor used drugs or alcohol. Javier stated Delgadillo was an honest man, and he had never seen Delgadillo angry.
Delgadillo’s wife confirmed her husband was not violent, he had never been arrested, and he did not use drugs or alcohol. She did not know anything about the black duffel bag in the van containing drugs and a weapon. She clarified she had wanted and requested to retrieve her children’s clothing, toys, and car seat from the van. Delgadillo’s wife stated she was cousins with the victim, Felix, and she knew he sold drugs and was often in the company of a man having the nickname Chinola. She stated Delgadillo gave Felix rides when he needed them, but Delgadillo did not associate with Chinola. After Delgadillo was arrested, his wife moved with their children to Arizona because she feared Chinola would harm her family.
Delgadillo’s mother in law, Senaida Zamudio, opined Delgadillo was not violent and he did not use drugs or alcohol. She testified Delgadillo was honest and he did not associate with Chinola. Zamudio said Felix, who had lived with her, was selling drugs and he was acquainted with Chinola. Felix once asked her for help because he owed Chinola $30,000. Zamudio did not know why Delgadillo would kill Felix or Sanchez.
Delgadillo offered his own testimony at trial. He stated Chinola shot Felix and Sanchez. He explained Felix had been having money troubles and had a falling out with Chinola because he owed him money. Delgadillo stated that the day before the murders, Chinola came to his house looking for Felix and the money he was owed. Chinola put a gun to Delgadillo’s ribs and threatened if he did not find Felix, his family would pay for what Felix owed. Delgadillo stated he was willing to do anything to protect his family because he was afraid Chinola would hurt or kill them. He agreed to meet Chinola the next day to find Felix, take him to a desolate area, and persuade him to get out of the car by asking if he needed to urinate. Delgadillo admitted he knew it was likely that after exiting the car Felix would be murdered.
Delgadillo picked up Chinola the next day, and while Chinola hid in the back of the van, Delgadillo picked up Felix and Sanchez (whom he did not know). Delgadillo claimed he did not know Chinola had a gun until he shot the victims. After the murders, Delgadillo stated he was afraid Chinola would shoot him too. He dropped Chinola off in Long Beach and then went home. Delgadillo denied knowing about the drugs, gun, or duffel bag found in his van. He opined the items must have been planted there.
The jury convicted Delgadillo of two counts of first degree murder, but found the firearm allegations not true. At the sentencing hearing, Delgadillo agreed that a different judge from the one who had presided over his trial could impose the sentence. Before the parties presented their arguments, the court stated it had read and considered the probation report, including “the statement of the offense and proposed findings pursuant to [California Rules of Court, ] rules 413, 414, 421, 423, [and] 425....”
All further rule references are to the California Rules of Court.
The probation report described the applicable criteria affecting probation, aggravating circumstances, mitigating circumstances, and criterion affecting concurrent or consecutive sentences. Delgadillo’s counsel urged the trial court to impose concurrent sentences, highlighting the many mitigating factors in this case. Specifically, Delgadillo participated in the crimes under duress, he had no prior record, and he was remorseful. Counsel submitted he had numerous letters from Delgadillo’s family and friends attesting to his good character and that he was an excellent father to his two small children. The prosecutor argued consecutive sentences were warranted due to the fact the victims were vulnerable and Delgadillo participated in planning the crimes. The trial court ruled as follows:
“I’m going to find there are statutory provisions that would limit the grant of probation in this matter. [¶] I also find pursuant to [r]ules 414 and 413 that in any event even if the probation [sic] did not exist, the probation is not a viable alternative since the nature of the circumstances of the crime were serious, that the victims were vulnerable, that [Delgadillo] was an active participant, that the manner in which the crime was carried out demonstrated planning, and that [Delgadillo] took advantage of a position of trust or confidence to commit the crime.
“I did consider the fact that [Delgadillo] does not have a prior record and that imprisonment will seriously effect [him] and his dependents and that he has shown remorse. But there is a likelihood if not in prison [Delgadillo] will still be a danger to others.
“As such, the [c]ourt finds that probation is not a viable alternative and should be denied. From what I reviewed, the criteria [pursuant] to [r]ules 421 and 423 in reference to aggravation and mitigation [are no longer relevant] since the crime [has an] indeterminate sentence.... [¶] However, I have considered those in connection with the sentence as to whether it should be concurrent or consecutive. [¶] I find that even though [Delgadillo] was under some coercion or duress... in the commission of the offense and that he was influenced by others to commit the crime, in fact, there are multiple victims in this case. And in addition to that, that the nature of the crime given the fact that there was a lying in wait type of situation and trust and confidence was involved in... taking advantage of that and committing [the] crime. [¶] As such, I find that under [r]ule 425 that consecutive sentences are to be imposed since the crimes did involve separate acts of violence or... threats of violence.”
II
“[A] trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial court’s discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Bradford (1976) 17 Cal.3d 8, 20.)
“The criteria applicable to the trial court’s discretion are set forth in... rule 4.425 [formally rule 425], which states that in imposing consecutive sentences a trial court may consider: (1) whether the ‘crimes and their objectives were predominantly independent of each other’; (2) whether the ‘crimes involved separate acts of violence or threats of violence’; and (3) whether 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.’ (Rule 4.425(a)(1)-(3).) However, these criteria are not exclusive. Rule 4.408(a), states: ‘[T]he enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.’ [Citation.] Indeed, “It has long been the rule that acts of violence against different victims may be charged and punished separately even though they occur on the same occasion. Even when violent crimes against the same victim on one occasion have separate motives, ... consecutive sentencing is proper. [Citation.]” (People v. Calderon (1993) 20 Cal.App.4th 82, 87, fn. omitted.)
Delgadillo asserts the court either misunderstood its discretionary power or abused its discretion in imposing consecutive terms. Assuming without deciding that these contentions were not forfeited by his failure to object (People v. Scott (1994) 9 Cal.4th 331), we conclude both his arguments lack merit.
“‘The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]’” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) “We must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error-it will not be presumed. [Citation.]’” (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Thus, there is a “normal presumption of regularity concerning the exercise of sentencing discretion.” (People v. Mosley (1997) 53 Cal.App.4th 489, 497.) An appellate court will not conclude the trial court misunderstood the scope of its sentencing discretion “in the absence of some affirmative showing that it misunderstood its discretion.” (People v. Alvarez (1996) 49 Cal.App.4th 679, 695 (Alvarez).)
Delgadillo has not affirmatively demonstrated the trial court misunderstood its sentencing discretion. He focuses on one statement the court made immediately before imposing consecutive prison terms: “I find that under rule 425 that consecutive sentences are to be imposed since the crimes did involve separate acts of violence or... threats of violence.” Delgadillo asserts the trial court mistakenly believed consecutive sentences were mandated whenever there are separate acts of violence. We have reviewed the entire record and conclude that when the court’s statement is read in context there is no concern about whether it misunderstood its discretionary power.
At the beginning of the hearing, the trial court stated it had read the probation officer’s reports, including the criteria affecting its decision on whether to impose consecutive or concurrent sentences. In addition, the court heard the parties’ arguments urging the court to either impose a consecutive or concurrent sentence, during which they highlighted and debated the various relevant factors the court should consider when exercising its discretion. Finally, we conclude that if the court believed it lacked discretion to choose, it would not have taken the time to comment on the many mitigating and aggravating circumstances present in this case before ultimately concluding consecutive sentences were warranted. The court specifically stated it had considered many factors before concluding a consecutive sentence was appropriate in this case
Without evidence to the contrary, we must presume the trial court was aware of and properly exercised its discretion to impose concurrent or consecutive prison terms for the two murders. To presume otherwise “would require us to engage in pure speculation, and violate a basic tenet of appellate review.” (Alvarez, supra, 49 Cal.App.4th at p. 695; cf People v. Deloza (1998) 18 Cal.4th 585, 600 [court misunderstood its discretion when it stated, “It will be a crushing sentence, but it would be unlawful for me to proceed in any other fashion.... [A]s to counts 2, 3 and 4, the sentences are 25 to life. They must run consecutive to the term imposed on count 1 ...”].)
Moreover, it cannot be said based on this record the court abused its discretion in imposing consecutive terms. Delgadillo asserts there were important mitigating factors in this case: He was acting under coercion or duress, he lacked a criminal record, he voluntarily confessed, and has shown remorse. True, but as the court commented, there were also significant aggravating factors. Delgadillo participated in the planning of these cruel and callous crimes, he took advantage of a position of trust and confidence, and the crimes involved separate acts of extreme violence. Any one of the above factors was sufficient to support a consecutive sentence. (People v. Davis (1995) 10 Cal.4th 463, 552 [“Only one criterion or factor in aggravation is necessary to support a consecutive sentence”].)
III
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.