Opinion
A117300
6-24-2008
THE PEOPLE, Plaintiff and Respondent, v. JON MICHAEL MOORE, Defendant and Appellant.
Not to be Published
Jon Michael Moore appeals from a judgment upon his plea of guilty to three counts of burglary, seven counts of issuing checks with insufficient funds, and one count of grand theft. He contends the trial courts imposition of consecutive terms is inconsistent with the California Rules of Court. We affirm.
I. FACTUAL BACKGROUND
From September 20, 2006, to October 25, 2006, defendant defrauded approximately 28 different local area businesses by writing at least 90 bad checks totaling more than $20,000. On November 22, 2006, defendant was charged with one count of conspiracy to commit burglary (Pen. Code, § 182, subd. (a)(1)); 33 counts of burglary (id., §§ 459, 460, subd. (b)); 21 counts of issuing checks with insufficient funds (id., § 476a, subd. (a)); and two counts of grand theft (id., §§ 484, subd. (a), 487, subd. (a)). On January 12, 2007, defendant pled guilty to three counts of burglary, seven counts of writing checks with insufficient funds, and one count of grand theft. The remaining charges were dismissed with Harvey waivers. On March 23, 2007, the court sentenced defendant to eight years in state prison—a 16-month term for grand theft and consecutive eight-month terms for the remaining 10 counts.
II. DISCUSSION
Defendant asserts the trial court erred in imposing consecutive terms by failing to properly articulate that defendants actions did not constitute a "single period of aberrant behavior." (Cal. Rules of Court, rule 4.425(a)(3).)
Defendant waived this issue by failing to object on this ground in the trial court. It is appropriate to apply the waiver doctrine "to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices." (People v. Scott (1994) 9 Cal.4th 331, 353.) Consequently, "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." (Id. at p. 356.)
Defendant argues that any objection would have been futile and is thus excused. Reviewing courts have recognized an exception to the waiver rule where the objection would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).) In determining if an objection is futile, courts consider whether the objection would have been wholly unsupported by the substantive law then in existence. (See ibid. [request for a jury trial on aggravating circumstances was futile when the trial court would have been required to deny the request because of binding state law]; People v. Welch (1993) 5 Cal.4th 228, 238 [defendant should not be expected to object at trial where existing law plainly said no objection was required]; People v. Turner (1990) 50 Cal.3d 668, 703 [evidentiary challenges need not be raised in the trial court if there is an unforeseeable change in the pertinent law and it is unreasonable to expect trial counsel to have anticipated the change].)
Defendant claims the objection would have been futile because his "attorney had already made the point . . . that the crimes showed a single period of aberrant behavior." We disagree. Had defendant objected, the court could easily have corrected any defects in its statement of reasons for imposing consecutive sentences. Further, defendant has not shown that the objection was not supported by substantive law then in existence. Thus, defendant waived this issue.
Even if the defendant had not waived the issue, the record demonstrates that no error occurred. Defendant maintains the trial court erred in imposing consecutive terms because it did not use the language explicitly set forth in California Rules of Court, rule 4.425(a)(3). Under rule 4.425(a), there are two criteria that are relevant to the courts decision to impose consecutive sentences here: "(1) The crimes and their objectives were predominantly independent of each other; [and] [¶]. . . [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." The trial court relied on these factors, stating that the actions of the defendant were "independent," and "[t]hey did occur at different times, different locations involving multiple victims." The trial courts statement clearly expressed that it deemed the nature of these crimes to fall within the provisions of rule 4.425(a)(1), (3).
Defendant suggests the absence of the words "a single period of aberrant behavior" in the stated reasons implies the court did not consider this factor in imposing the consecutive terms. The trial courts statement, however, refuted defense counsels assertion that the crimes were committed during a single period of aberrant behavior by stating the offenses involved multiple victims at different times and places. That defendants actions did not occur within a single period of aberrant behavior was inherent in the courts statement.
Comparable appellate court cases support the trial courts imposition of consecutive sentences in this case. For example, in People v. Simon (1983) 144 Cal.App.3d 761, 764, the defendant pled guilty to 12 of 37 counts of forgery involving funds belonging to a soccer league. The court imposed consecutive sentences because "the offenses were committed at distinctly different times and not during a single period of aberrant behavior." (Id. at p. 767.) There, the defendant argued that this was "`simply wrong" because "many of the counts to which the [defendant] pled took place on the same day; the remainder took place within the course of a single month, and all of the conduct was directed towards the league." (Ibid.) The court rejected this claim and noted that "6 of those counts occur[red] on different dates covering a 40-day period." (Ibid.)
Similarly, in People v. Martin (1992) 3 Cal.App.4th 482, 485-486, the defendant was found guilty of one count of robbery, three counts of burglary and received consecutive sentences for each count. The defendant argued that since the offenses "were all committed on the same day, within a short time of each other, in the same general area" and for the same purpose, they constituted a single period of aberrant behavior. (Id. at p. 489) The appellate court rejected the defendants argument, reasoning that the crimes were separate, distinct and individual. (Id. at pp. 489-490.)
Here, as in Simon and Martin, the crimes were distinct and were not committed during a single period of aberrant behavior. To the contrary, as defendant conceded, the pleaded counts involved different victims, different stores, and different days, all occurring within a 35-day time span. The courts statement emphasizing defendants independent acts and the distinct times, places, and victims adequately supported its exercise of discretion. (See Sandoval, supra, 41 Cal.4th at p. 847 [trial courts sentencing discretion should be based on an "`individualized consideration of the offense, the offender, and the public interest"].) Moreover, while defendant argues that there are several mitigating factors present in the case, the record demonstrates that the court considered these factors in imposing the mitigated term of 16 months on the grand theft offense. It found, however, that consecutive sentences on the remaining counts were appropriate, noting "the significant impact [defendants] conduct has had on the community." On this record, we discern no error in the sentencing.
III. DISPOSITION
The judgment is affirmed.
We concur:
RUVOLO, P.J.
REARDON, J. --------------- Notes: People v. Harvey (1979) 25 Cal.3d 754.