Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. 143685; 147492
RIVERA, J.
Corey Alexander Mitchell appeals from a judgment in case No. 147492 upon a jury verdict finding him guilty of six counts of carjacking (counts 1, 5, 7, 10, 12, 13; Pen. Code, § 215, subd. (a)); two counts of second degree robbery (counts 2, 14; § 211); three counts of possession of a firearm by a felon (counts 3, 9, 11; § 12021, subd. (a)(1)); kidnapping in the commission of a carjacking (count 4; § 209.5, subd. (a)); assault with a semiautomatic firearm (count 8; § 245, subd. (b)); and reckless driving while fleeing from a peace officer (count 16; Veh. Code, § 2800.2, subd. (a)). The jury also found true the allegations that in connection with counts 1, 2, and 10, defendant personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b); that he personally and intentionally discharged a firearm that proximately caused great bodily injury in the carjacking offense of count 7; and that in connection with counts 7 and 8, he personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (b). The trial court sentenced defendant to state prison for a term of 62 years to life. Defendant contends that (1) the trial court abused its discretion in denying his Marsden motions; (2) the evidence was insufficient to support his convictions for kidnapping in the commission of the carjacking of Janet Grossman (count 4) and carjacking of Sarah Foster (count 13); (3) if his conviction of the count involving Grossman is upheld, the lesser included offense of carjacking of Grossman must be reversed (count 5); and (4) the court erred in imposing aggravated terms and consecutive sentences. On appeal and in a petition for habeas corpus, which we consolidate with this appeal, defendant also argues that his trial counsel was ineffective. The Attorney General concedes that count 5 must be reversed. In all other respects, we affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant has also appealed from the sentence imposed after revocation of probation in case No. 143685. He raises no issues in connection with this appeal; we, therefore, deem it abandoned.
I. FACTS
A. Vance Goulart (Counts 1-3)
At approximately 9:30 a.m. on October 17, 2003, as Vance Goulart was walking toward his car in front of his home in San Lorenzo to load some items, he noticed defendant walking toward him. Goulart continued toward his car, and loaded the items in the back seat of the car. As he was shutting the door, defendant put a gun to the back of his head and demanded his money. Goulart told him that his money was in the backpack in the car.
Defendant, who was still pointing the gun at Goulart, then asked him for his car keys. As Goulart fumbled for his keys in his pants pocket and stalled, defendant hit him in the jaw. Goulart fell to the pavement. In the process, he dislocated his index finger. Goulart got up and defendant again demanded the keys. Goulart gave him the keys. Defendant went over to the driver’s side of the car and noticed that the car had a steering wheel lock. He demanded that Goulart unlock it. Goulart got into the car and unlocked the club. Goulart gave the keys back to defendant who got in the car and drove away.
Goulart did not identify defendant in three photographic line-ups. He identified a photograph in each of the line-ups that he said looked similar to the man who robbed him but said that defendant was not clean shaven. On October 30, 2003, Goulart attended a physical lineup. He identified defendant as the perpetrator. He also identified defendant at trial. He was certain that the man he identified in the photographic lineups was not the man who took his car.
That photograph was of James Shultz.
B. Janet Grossman (Counts 4-5)
On October 19, 2003, at about 4:30 p.m., Janet Grossman was on Hill Lane behind her home in Piedmont. Her home had a detached garage accessible from Hill Lane. Grossman was leaving her garage and entering the garden area of her home when defendant approached her. He pointed a gun at her and said, “ ‘Lady, I need the keys to your car.’ ” Grossman said that she did not have the keys with her. Defendant repeated that he needed the keys and that he would shoot her if she did not give them to her. She then volunteered to get the keys and promised not to call the police. Defendant said he could not allow that and followed her into the house, pointing the gun at her. Her son, who was in the basement of the house, yelled out “ ‘Mom’ ” when she entered the house. Grossman screamed at him to stay put and not to come upstairs. The distance from the garden to the house was about 70 feet. Once inside the pantry area of her kitchen, Grossman retrieved her car keys and handed them to defendant. Defendant fled in Grossman’s Ford Explorer.
On October 24, 2003, Grossman viewed a photographic line-up. She said that a photograph of Shultz looked like the perpetrator except for the mustache, his eye color and his ears. On October 30, 2003, Grossman attended a physical lineup. She identified defendant as the perpetrator and also identified him at trial.
C. Santos Cruz (Counts 7-9)
At approximately 2:25 p.m. on October 24, 2003, Santos Cruz was at home with his daughters in Hayward. He was about to go to the store in his minivan. He turned it on and then went back in the house to check on his daughters. When he returned to the van, defendant approached him and pointed a gun at him. He cocked his gun and demanded that Cruz give him his car keys. Cruz told defendant that the keys were in the car. As defendant started to get in the car, Cruz backed up. Cruz was two to three feet away when defendant shot him, striking him in right side of his chest. Cruz fell to the ground. Defendant fled in the minivan.
Cruz suffered a spinal cord injury, a collapsed lung, massive bleeding and at least one broken rib. His injuries resulted in complete paralysis and loss of urinary and bowel functions.
Cruz identified defendant in a videotape of a physical lineup. He also identified defendant at trial.
The police located Cruz’s van in Oakland on November 5, 2003. A search of the van revealed a bullet casing on the floorboard between the front seats. DNA taken from the gearshift handle of the van was a positive match with defendant’s DNA profile.
D. Marie Sylvestre (Counts 10-11)
At about 2:00 p.m. on October 26, 2003, Marie Sylvestre was sitting in her BMW on Lee Street in Oakland talking with her sister on her cell phone. Defendant approached and put his head inside the passenger side window and asked her if she lived in the neighborhood. Sylvestre said no, and defendant walked away. He returned to the passenger side, pointed a gun at her and said, “ ‘Get out of the car now.’ ” Sylvestre fled, leaving her purse and keys in the car.
The police responded to the scene and showed Sylvestre a photograph of a suspect that she identified as looking like her assailant. On October 30, 2003, Sylvestre viewed a physical line-up and identified defendant. She also identified him as the perpetrator at trial.
E. Katherine Rice and Sarah Foster (Counts 12-14, 16)
On October 27, 2003, Katherine Rice was returning to her Oakland home at approximately 5:15 p.m. She parked her Ford Expedition in the driveway. While she was still in the car, her partner, Sarah Foster, came over to the car and opened the passenger door. They talked while Foster leaned over the front seat and looked for something in the glove compartment. As they talked, Rice noticed two men walking toward the back of the car. Rice saw them continue walking toward the direction of 42nd Street. She continued to talk with Foster but then sensed someone at the driver’s side window. Rice turned toward her window and saw defendant pointing a gun at her. Defendant told her to get out of the car. Rice got out of the car and was carrying her purse. As Rice got out of the car, Foster too backed away from it. Defendant demanded Rice’s purse. Rice hesitated but gave it to him after he repeated his demand. Rice backed away and hid behind a neighbor’s car. Defendant fled in the car. Foster called 911.
A high speed chase ensued. Defendant eventually crashed into a parked car at 33rd Street and Martin Luther King Jr. Way. He jumped out of the car and ran off. The police pursued defendant on foot and defendant was taken into custody within a few minutes.
The police later took Rice and Foster to make a field identification. Both identified defendant as the perpetrator. They also identified defendant at trial.
II. DISCUSSION
A. Marsden Motions
Defendant argues that the trial court abused its discretion in denying four Marsden motions. We conclude that the court properly denied the motions.
1. Factual Background
Defendant first brought a Marsden motion against his first counsel, Frank Lang, who was appointed to represent defendant on December 4, 2003, and had represented defendant since his initial days of custody on this matter. On August 10, 2005, the trial court denied that motion. Defendant does not contest the court’s ruling on this motion on appeal. Lang, however, subsequently filed a motion to withdraw as counsel on the ground that defendant had no confidence in him and wanted him to be replaced, that he was refusing to speak to him, and that they disagreed over how the defense of the matter should be handled. The People opposed the motion, arguing that defendant was deliberately attempting to delay his trial by refusing to cooperate with Lang. Lang then withdrew the motion on September 14, 2005. On October 20, 2005, Lang renewed his motion; the court granted it and appointed Barbara Thomas.
Defendant brought his first Marsden motion against Thomas on November 22, 2005. He argued that Thomas had not talked to him about the case and was not qualified to represent him. Thomas explained to the court that Lang did not provide her with the discovery in the case until November 3, 2005, that she was learning the case and reviewing approximately 2,000 pages of documents, and creating her motions in limine, witness list and jury instructions. She also remarked that she understood the prosecution intended to take six weeks to present its case so that she would have plenty of time as the case unfolded to meet with defendant. The trial court denied the motion, finding that the Marsden motion was premature. The court, however, ordered that Thomas meet with defendant immediately.
On December 12, 2005, defendant brought a second Marsden motion contending that Thomas failed to meet with him, refused to communicate with him and had not filed motions critical to his defense. He acknowledged that Thomas had met with him in a visiting booth at the jail where they communicated by telephone. He argued, however, that he needed a contact visit. He also argued that he wanted Thomas to file certain motions. Thomas explained to the court that she visited defendant on November 25, 2005, and that she was not able to schedule a contact visit for that date given the short notice. She said that Thomas refused to give her a list of things he wanted her to do. She told defendant that his motions were not viable on the facts. As she was explaining the various pros and cons of the things defendant wanted her to do, defendant became angry and left the visiting room. Thomas later spoke with Lang about the motions and learned that he had the same discussions with defendant during the two years he represented him, so she opined that “it’s not so much what I say, it’s just I’m the bearer of bad news and I can’t change the law.” She also stated that she offered to meet with defendant after the hearing but that he did not want to meet with her in the jail upstairs or to talk on the phone or to write. The court denied the motion, but admonished Thomas to make more efforts to talk with defendant.
Defendant made a third Marsden motion by letter on December 20, 2005. The trial court denied the motion, reasoning that defendant was not raising anything new since his last hearing.
On January 3, 2006, defendant brought his fourth Marsden motion. Defendant argued that Thomas had not visited him since the last Marsden hearing in December. Thomas explained that she offered to meet with defendant after the hearing on December 20, 2005, but that he refused. She told him that she could come out to the Santa Rita jail but that she could not arrange a contact visit. She wrote to him and asked him to provide her with a list of witnesses. She also attempted to arrange a contact visit to no avail since no one would answer the telephone at the jail. The court denied the motion, noting the difficulty in arranging contact visits in Santa Rita, and that defendant still had time to consult with her because it would be over two weeks before the defense had to present its case.
2. Analysis
A defendant has a right to substitute counsel upon a showing that his constitutional right to counsel would otherwise be substantially impaired. (Marsden, supra, 2 Cal.3d at p. 123.) A defendant is entitled to substitute counsel if the record clearly shows that his counsel is not providing competent representation or that the defendant and counsel are embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860.) We review a trial court’s denial of a Marsden motion for abuse of discretion. (People v. Smith (1993) 6 Cal.4th 684, 690-691 (Smith).)
Defendant argues that the trial court abused its discretion because it did not hold a hearing after receiving his letter of December 20, 2005. As defendant acknowledges, in People v. Wharton (1991) 53 Cal.3d 522, 580, our Supreme Court held that where the defendant, in a detailed letter to the court, explains the reasons for his dissatisfaction with counsel in sufficient detail, the court is not required to conduct a hearing. Here, as in Wharton, defendant’s letter apprised the court of his complaints about Thomas. In any event, defendant was given an additional opportunity to discuss his issues with counsel shortly thereafter during the hearing on his fourth Marsden motion on January 3, 2006. No error appears.
Defendant also argues the record shows that Thomas never had a “private conversation” with him, and that they became embroiled in an irreconcilable conflict. The record, however, demonstrates that Thomas met with defendant several days after the first Marsden hearing. While it was not a contact visit, Thomas discussed the case with defendant, and explained the pros and cons of the various motions he wished to make. Defendant, however, became angry and terminated the visit. As Thomas explained to the court during the second Marsden hearing, she asked Lang, defendant’s former counsel, about the motions and “he . . . indicated that he had all of these discussions with Mr. Mitchell earlier and that he had gone over everything that I had gone over, such as the standing issue and the 1538, such as the Pitchess information. . . . [H]e’d gone over those items with Mr. Mitchell in detail during the two years that he represented him.” And, Thomas informed the court that she offered to meet with defendant at the jail after the second Marsden hearing, but he indicated that he did not want to talk at the upstairs jail, insisting instead on a contact visit at the Santa Rita jail.
Hence, this is not a case where defendant did not have an opportunity to discuss his case with his attorney, but rather one where defendant could have made more use of the time his counsel had to talk with him about the case. By the time of trial in mid- December 2005, defendant’s case had been pending for more than two years, and the case was proceeding on a “no-time-waiver.” Thomas, who was substituted as counsel on October 20, 2005, was under a time constraint to prepare the case for trial, and even with the limited time available made numerous attempts to communicate with defendant. Defendant, however, stifled Thomas’s attempts to discuss the case further.
The trial court did not abuse its discretion in denying the Marsden motions. The record shows that Thomas was a competent and experienced attorney. As the Seventh Circuit Court of Appeals recognized, “[w]e know of no case establishing a minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel . . . .” (United States ex rel. Kelba v. McGinnis (7th Cir. 1986) 796 F.2d 947, 954.) While it might have been optimal for Thomas to have met with defendant more frequently prior to trial, the trial court accepted Thomas’s explanation; and we cannot conclude that defendant was entitled to a substitution of counsel on that basis.
The California Supreme Court has cautioned trial courts to substitute counsel only when necessary—that is, only when the record clearly shows that counsel is not providing competent representation or that the defendant and counsel are embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (Smith, supra, 6 Cal.4th at p. 696.) Here, the trial court inquired into defendant’s dissatisfaction with counsel at several hearings; the court was entitled to accept counsel’s explanations for her actions. To the extent defendant complained about counsel’s failure to meet with him before trial, the record shows that Thomas did meet with him and made several efforts to meet again prior to trial but that defendant declined to meet. It is well settled that “a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.” (Ibid.) On this record, the trial court did not abuse its discretion in denying defendant’s Marsden motions.
Defendant also argues that Thomas failed to investigate and pursue possible plea dispositions. This argument is belied by the record which indicates that defendant faced three life terms, and that the prosecutor had refused to make an offer.
B. Kidnapping in the Commission of a Carjacking
Defendant contends that the evidence was insufficient to support his conviction of kidnapping in the commission of a carjacking. He argues that any movement of Grossman to retrieve her car keys was incidental to the carjacking.
In determining whether the evidence is sufficient to support the verdict, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
The crime of kidnapping during the commission of a carjacking occurs when a person “during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking . . . .” (§ 209.5, subd. (a).) The offense is committed only “if the movement of the victim is beyond that merely incidental to the commission of the carjacking, the victim is moved a substantial distance from the vicinity of the carjacking, and the movement of the victim increases the risk of harm to the victim over and above that necessarily present in the crime of carjacking itself.” (§ 209.5, subd. (b).)
Here, the evidence showed that defendant forced Grossman at gunpoint to move from her garden to the inside of her home, a distance of approximately 70 feet. The asportation not only caused her to move from a place where she might have been seen by her neighbors, it increased the risk of harm to her and that of her son who, unbeknownst to defendant, was in the home. Moreover, the kidnapping was not merely incidental to the carjacking as Grossman had volunteered to get her keys. (See People v. Shadden (2001) 93 Cal.App.4th 164, 168-169 [movement that is neither part of nor necessary to the offense is not incidental to the crime].) The jury could, thus, reasonably infer that the movement was substantial and not incidental to the carjacking. (People v. Smith (1995) 33 Cal.App.4th 1586, 1593-1594 [movement that changes victim’s environment does not have to be great in distance to be substantial].)
Relying on People v. Moore (1999) 75 Cal.App.4th 37, defendant argues that the kidnapping in the commission of a carjacking offense requires that the asportation occur or continue after the carjacking is complete. Moore does not so hold. Rather, the Moore court was concerned with the definition of substantial distance in the asportation requirement of section 209.5. The court held that the trial court properly instructed the jury that a substantial distance from the vicinity of a carjacking is a distance that is more than slight, brief or trivial. (Moore, at p. 46.) The Moore court concluded that “ ‘any point within the “vicinity” of the carjacking was a sufficient starting point for the calculation of whether the victim was moved a “substantial distance.” ’ ” (Ibid.) Here, there is no question that Grossman was moved a substantial distance—70 feet—from the vicinity of the carjacking. Defendant’s challenge to the sufficiency of the evidence to support his conviction of the offense therefore fails.
Citing People v. Perez (2000) 84 Cal.App.4th 856, defendant also argues that the prosecution was required to show that the kidnapping was committed to effect an escape or to prevent an alarm from being sounded. In Perez, the court considered the issue of the specific intent required to commit kidnapping during the commission of a carjacking. (Id. at p. 860.) The court rejected the appellant’s claim that a kidnapping was committed only if it was “intended to make it easier to take the victim’s car” and held that “if there is substantial evidence that appellant intended the kidnapping to effect an escape or prevent an alarm from being sounded, his conviction for kidnapping during the commission of a carjacking must stand.” (Id. at pp. 860-861.) Perez, supra, at pages 860-861, analogized kidnapping during the commission of a carjacking to kidnapping during the commission of a robbery, citing People v. Monk (1961) 56 Cal.2d 288, 295. In Monk, the court recognized that “it has been held that where a kidnapping occurs after the actual perpetration of a robbery such kidnapping may be kidnapping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm.” (Ibid.)
Here, the kidnapping occurred during the commission of the carjacking and not after the carjacking was complete. Hence, to the extent Perez relied on the defendant’s actions after the carjacking in order to establish the section 209.5 offense, it is inapposite to this case, where defendant was in the process of the carjacking when he kidnapped Grossman. Substantial evidence supports the verdict.
C. Carjacking of Grossman
The Attorney General concedes that defendant’s conviction of carjacking Grossman (count 5) must be reversed because it is a lesser included offense of kidnapping during the commission of a carjacking. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415 [carjacking is a necessarily included offense of kidnapping for carjacking].) Accordingly, we will dismiss the count 5 carjacking conviction.
D. Carjacking of Foster
Defendant contends that the evidence is insufficient to support his conviction for carjacking Foster because she was neither the driver nor a passenger in the Expedition and was not in possession of the vehicle.
Carjacking is “the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.” (§ 215, subd. (a).) Contrary to defendant’s contention, there was substantial evidence that Foster was a passenger in the Expedition. The evidence showed that as defendant approached to carjack the car, Foster was leaning over the front seat of the passenger’s side of the car talking with Rice, who was in the driver’s seat, and looking for something in the glove compartment. That she was not seated in the car is not dispositive. It is well settled that a carjacking does not require that the victim be inside or touching the vehicle at the time of the taking. (People v. Coleman (2007) 146 Cal.App.4th 1363, 1373; see also People v. Coryell (2003) 110 Cal.App.4th 1299 (Coryell) [passenger who fled from a car after witnessing confrontation between driver and defendant at a phone booth was a victim of subsequent carjacking].) Here, the evidence that Foster was leaning into the car at the time of the carjacking supported the finding that she was a passenger within the meaning of the carjacking statute. Moreover, as a passenger, she had sufficient possession of the vehicle to be a victim of the carjacking. (Coryell, supra, 110 Cal.App.4th at p. 1304 [passenger in automobile has ostensible control over it to be in possession of the vehicle for purposes of carjacking statute].)
E. Imposition of Aggravated Terms and Consecutive Sentences
The trial court imposed the upper terms on counts 1, 2, 3, 7, 8, 9, 11, and 14. Defendant acknowledges that under People v. Black (2007) 41 Cal.4th 799 (Black), the trial court’s imposition of the aggravated term based on the aggravating factor of his prior convictions did not violate the Sixth Amendment, but for the first time in his reply brief argues that the midterm must be imposed unless the aggravating factors outweigh those in mitigation.
The court also imposed an upper term on count 5 (the conviction of which we will dismiss). It stayed the upper terms on counts 2, 3, 8, 9, and 14.
In Cunningham v. California (2007) 549 U.S. 270, ___ [166 L.Ed.2d 856, 875-876; 127 S.Ct. 856, 870-871], the United States Supreme Court held that imposition of an upper term sentence under California’s determinate sentencing law violates the Sixth Amendment because it permits trial courts to impose the sentences based on aggravating factors found true using only a preponderance of the evidence standard. The court, however, indicated that trial courts may determine the fact of a defendant’s prior conviction. “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864; 127 S.Ct. at p. 860] italics added.)
Our Supreme Court recently addressed Cunningham in Black. The court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black, supra, 41 Cal.4th at p. 813.) Because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, “if one aggravating circumstance has been established in accordance with the constitutional requirements . . ., the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Black, at p. 813, fn. omitted.) The court further held that the Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black, at p. 819.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Id. at pp. 819-820.)
Here, the fact that defendant suffered a prior conviction was sufficient to support imposition of the aggravated terms. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864; 127 S.Ct. at p. 860]; Black, supra, 41 Cal.4th at pp. 819-820.) We are bound by the Supreme Court’s ruling in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Further, the court determined that the aggravating factors outweighed any mitigating circumstances. While defendant asserts that the matter should be remanded to consider whether the aggravating factors outweigh those in mitigation, he does not suggest which mitigating factors the court did not consider and none are listed in the probation report. We, therefore, cannot conclude that the court abused its discretion in imposing the aggravated terms here particularly in light of the numerous aggravating factors present including that defendant was on felony probation, he endangered the life and physical well-being of the victims, his pattern of conduct indicates that he presents a serious danger to society, and his prior performance on probation was unsatisfactory.
Defendant also argues that the trial court erroneously used the same factor to both aggravate his sentence and to impose consecutive sentences. He, however, waived this issue by failing to object on this ground in the trial court. It is well settled that the waiver doctrine applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (People v. Scott (1994) 9 Cal.4th 331, 353.) “[C]omplaints 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.” (Id. at p. 356.)
Nevertheless, any error was harmless. “Only one criterion or factor in aggravation is necessary to support a consecutive sentence.” (People v. Davis (1995) 10 Cal.4th 463, 552.) Here, there were numerous factors supporting the imposition of consecutive sentences. Under California Rules of Court, rule 4.425(a), the court may impose consecutive sentences where “(1) [t]he crimes and their objectives were predominantly independent of each other; [or] [¶] . . . [¶] (3) [t]he 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.” Here, the crimes committed were not only independent of each other, they involved separate acts of violence and were committed on different dates and at separate places. On these facts, it is not reasonably probable that a more favorable sentence would have been imposed in the absence of error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
F. Assistance of Counsel
Defendant contends that he was denied the effective assistance of counsel because defense counsel conceded that he was guilty of carjacking Foster, and failed to object to consecutive sentences. As we have discussed above, there was substantial evidence that defendant carjacked Foster, and any error in failing to object to consecutive sentences was harmless in light of the numerous factors present supporting the sentence rendered. As defendant must establish prejudice from his counsel’s acts of omissions, his claim fails. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
III. THE HABEAS PETITION
Defendant contends that he was denied the effective assistance of counsel because his counsel, Thomas, failed to communicate with him before trial. He argues that Thomas did not have a contact visit with him and that he never had an opportunity to discuss plea negotiations and waiving time for trial with her.
In order to prove a claim of inadequate representation, a defendant must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.) Effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.]” (Id. at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel only if the defendant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.) The defendant must also establish prejudice from counsel’s acts or omissions. Ordinarily prejudice must be affirmatively proved; the defendant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland, supra, 466 U.S. at p. 687.)
Here, the record refutes defendant’s claim. As we indicated in our discussion on the direct appeal, Thomas did meet with defendant prior to trial and discussed the case, but defendant became angry and walked out on the visit. In her declaration, filed in connection with the habeas petition, Thomas states that at their first visit, they spoke for “nearly an hour” but that defendant abruptly terminated the visit with an abusive outburst. Thomas made additional attempts to communicate with defendant prior to trial and tried to schedule a contact visit but was unable to arrange one. In her declaration, Thomas explains that at no point did defendant indicate that he wanted to enter a time waiver or change his plea to some of the counts. Thomas further indicates that pretrial proceedings took several days and that the trial continued for several weeks. During this period, defendant sat next to Thomas in court and they spoke with each other throughout the pretrial and trial proceedings. They were also able to speak during many breaks including some where, with the court’s consent and direction, they were left in court alone so that they might privately discuss issues. Thomas also visited defendant twice during lunch at the jail. Hence, contrary to defendant’s characterization of his communication with Thomas, the record reflects that Thomas did consult with defendant and that they communicated throughout the proceedings.
Defendant also argues that Thomas was ineffective because she conceded his guilt on the Foster carjacking count and failed to object to the imposition of consecutive sentences. As we have discussed above, defendant’s arguments on these issues are unpersuasive. Substantial evidence supported his conviction on the carjacking offense, and any error in the court’s statement of reasons for imposing consecutive sentences was harmless.
Finally, defendant contends that Thomas was ineffective because she failed to object to the court’s sentence on the carjacking offense alleged in count 5 as it was a lesser included offense of kidnapping during the commission of a carjacking. We have, however, on defendant’s direct appeal, already determined that count 5 must be dismissed.
IV. DISPOSITION
Defendant’s conviction for carjacking of Grossman (count 5) is dismissed. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting dismissal of count 5 and to forward a copy to the Department of Corrections and Rehabilitation. The petition for writ of habeas corpus is denied.
We concur: RUVOLO, P.J., REARDON, J.