Opinion
H035473
10-14-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ANDREW RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC941510)
Defendant Robert Andrew Ramirez was convicted by a jury of false imprisonment (Pen. Code, §§ 236, 237, count 1), brandishing a deadly weapon other than a firearm (§ 417, subd. (a)(1), counts 3 & 5) and battery (§§ 242, 243, subd. (a), count 4). In connection with count 1, the jury found not true the allegation that Ramirez personally used a deadly and dangerous weapon (a knife). (§ 12022, subd. (b)(1).) However, the jury found true the allegation that each of the offenses was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subds. (b)(1)(B), (d).)
Further unspecified statutory references are to the Penal Code.
The court sentenced Ramirez to an aggregate term of eight years and four months in prison, ordered restitution and imposed other fines and fees.
On appeal, Ramirez makes the following arguments: (1) the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of attempted false imprisonment; (2) defense counsel was ineffective for failing to object to the prosecutor's indirect comment on Ramirez's failure to testify; (3) there was insufficient evidence to support the convictions on the charges of battery and brandishing a deadly weapon; (4) there was insufficient evidence to support the jury's findings on the criminal street gang allegations; (5) defense counsel was ineffective for not objecting to hearsay testimony proffered by the prosecutor's gang expert and for not requesting a proper limiting instruction; (6) the trial court erred in instructing the jury with CALCRIM No. 3472 as that instruction misstates the law on contrived self-defense and was not supported by the evidence in this case; (7) the trial court erred in imposing multiple punishments for acts committed incident to a single intent and objective; and (8) defense counsel was ineffective for failing to object to the trial court's sentencing errors.
We disagree with all but one of Ramirez's arguments, i.e., that the trial court improperly imposed a concurrent sentence on count 3, and shall affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution's case
Shortly after 1:00 p.m. on April 22, 2009, Cornelio Lopez, Jr. and his pregnant girlfriend, Karina Cruz, were walking to a bus stop near Lopez's family home. At the corner of Zion and Mauna Kea Lanes, Lopez noticed two men in a van stopped at the stop sign. The van drove past Lopez and Cruz and the driver was looking at Lopez. Lopez looked back to see if he knew the driver, but did not recognize him, so he continued walking with Cruz.
The driver, later identified as Jorge Velazquez, got out of the van and walked toward the couple, calling out, "Hey, hey," and throwing up his hands. As Velazquez got closer, he called Lopez a "scrap" and began pushing him. Velazquez asked Lopez where he was from and Lopez said "I ain't from nowhere." Cruz put her hand between the two men and said, "What do you want from us? Leave us alone. I'm pregnant. We're not looking for any problems."
Lopez saw the other man, later identified as Ramirez, get out of the van and begin walking towards them. Ramirez stopped about 24 feet away, with his right arm slightly bent and behind his leg, as if he were hiding something. Lopez could not continue to pay attention to Ramirez, because Velazquez pushed him again and asked him if he "banged," i.e., was a gang member. Lopez said no.
Lopez felt the two men would not let him walk away and he was concerned that Ramirez might have a weapon. He testified, "Where I live, like right there, across the street, there's nowhere to run. They were either going to chase me, stab me or something, or stab my girlfriend."
Lopez's brother, Michael, was backing out of the driveway with their mother in the front passenger seat when he noticed two men had "cornered" Lopez. Velazquez was in front of Lopez, pushing him against a fence. Michael saw Ramirez was holding a large knife, nine to 10 inches in length. Michael drove his car towards the group, intending to just scare Velazquez and Ramirez. Lopez saw Michael's car coming towards them and, as it skidded, he jumped out of the way. The car hit Velazquez and crashed into the neighbor's fence. Michael got out of the car and, along with Lopez, began chasing after Velazquez and Ramirez who were retreating to their van.
Michael punched Velazquez, who was sitting in the driver's seat of the van, about four times. He was angry that the two men had attacked his brother and was afraid that Velazquez would try to run someone over if he drove off. Velazquez covered his face and seemed to be trying to reach for something on the floor of the van. Ramirez, who was sitting in the passenger seat, hit Michael twice in the face with a cane, and told Velazquez to "get the gun." Velazquez got out of the seat and went to the back of the van, returning with a large knife.
Michael and Lopez ran back to their garage to get weapons of their own. Velazquez came after them, but Ramirez followed only a short distance. Lopez grabbed a metal pipe, and Michael armed himself with a metal bar. Velazquez and Ramirez ran back to their van and drove away. A few minutes later, Velazquez drove by the Lopez's house again, waving an object that appeared to be a knife at Michael who was standing in the driveway.
San Jose Police Officer Eric Navarro was on duty on April 22, 2009, in an unmarked vehicle. At approximately 1:30 p.m., he received a report of an incident in the vicinity of Zion Lane, which was near his location. The suspects were described as two Hispanic males in a gray van. Soon afterwards, Navarro saw a gray van, with two Hispanic males in it, going the other direction on the street he was on, so he made a U-turn and began following them. The van pulled into the driveway of a residence and Velasquez and Ramirez got out. They walked toward the driver's side of the van, then began to cross the street, walking southbound. Navarro noticed that Velazquez was walking with a limp. Velazquez handed something to Ramirez, who walked back to the van, opened the door and appeared to be putting something in the vehicle or taking something out of it.
The two men were subsequently identified as Velazquez and Ramirez.
When another officer arrived, Navarro detained Ramirez, but Velazquez saw the officers and ran. A third officer located and stopped Velazquez nearby. The keys to the gray van were recovered from Ramirez's pocket. Lopez identified Velazquez and Ramirez as his assailants at in-field show-ups. After Ramirez was detained, an officer entered the residence where the van was parked and located a light-colored wooden cane, about 33 inches long, leaning against a wall just inside the door.
The police searched the van and found three knives inside. Ramirez's DNA was detected on one of the knives, and Velazquez's DNA was detected on all three knives.
Elizabeth Franco, Velazquez's mother, recognized two of the three knives as her kitchen knives. She did not recognize the third knife and did not know how or why the knives were in her van.
Following his arrest, Ramirez denied involvement in the assaults. In a subsequent interview with the police, however, he admitted being present at the scene of the altercation.
B. The defense case
The defense presented no testimony.
C. Verdict and sentencing
Following deliberations, the jury found Ramirez guilty on all counts and found the criminal street gang allegation true as to all counts as well. The jury found it was not true that Ramirez personally used a knife in connection with the charge of false imprisonment.
The trial court sentenced Ramirez as follows: (1) count 1--upper term of three years, consecutive to four years pursuant to the criminal street gang enhancement; (2) count 3--upper term of three years, concurrent; (3) count 4--eight months (one-third the middle term), consecutive; and (4) count 5--eight months (one third the middle term), consecutive. The total aggregate term was eight years and four months.
Ramirez timely appealed.
II. DISCUSSION
A. Failure to instruct on the lesser included offense of attempted false imprisonment
Ramirez argues the trial court had a sua sponte duty to instruct the jury on the lesser included offense of attempted false imprisonment since the evidence presented raised a question as to whether all the elements of false imprisonment were present. We disagree.
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) The crime is elevated from a misdemeanor to a felony if it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) Any exercise of force, express or implied, by which a person is deprived of liberty or freedom of movement, or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is imprisonment, within the meaning of the crime of false imprisonment; confinement in some type of enclosed space is not required. (People v. Fernandez (1994) 26 Cal.App.4th 710, 717.)
When the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of a lesser offense, the trial court has a sua sponte duty to instruct on the lesser included offense. (People v. Cooper (1991) 53 Cal.3d 771, 827.) Failure to do so denies a defendant his "constitutional right to have the jury determine every material issue presented by the evidence." (People v. Sedeno (1974) 10 Cal.3d 703, 720.)
In this case, all the elements of the charged offense were present. Lopez testified that Velazquez repeatedly pushed him, called him a "scrap" and asked him questions that Lopez understood to be gang-related, i.e., "Where are you from?" and "Do you bang?" While this was occurring, Lopez saw Ramirez exit the van and move closer, with his hand behind his back as if trying to conceal something. Lopez said that Velazquez and Ramirez "wouldn't let me walk away. . . . there's nowhere to run. They were either going to chase me, stab me or something, or stab my girlfriend." Michael also testified that he saw Velazquez and Ramirez "cornering" Lopez, with Velazquez pushing Lopez against the fence. This testimony provides substantial evidence that Ramirez falsely imprisoned Lopez by compelling him to remain by his neighbor's fence, a place he did not wish to remain. Consequently, the trial court had no sua sponte duty to instruct the jury on the lesser included offense of attempted false imprisonment.
B. Ineffective assistance of counsel
To establish ineffective assistance of counsel, defendant must establish that his attorney's representation fell below an objective standard of reasonableness under prevailing professional norms, and that he suffered prejudice therefrom. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.) Prejudice is established by showing that there is a reasonable probability of a more favorable result absent his attorney's shortcomings. (People v. Riel, supra, at p. 1175.) A " 'reasonable probability' " is a probability sufficient to undermine confidence in the outcome. (Ibid.) A reviewing court may resolve an issue of ineffective representation by counsel by deciding only the question of prejudice. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington, supra, at p. 697.)
During closing argument, defense counsel discussed the presence of Ramirez's DNA on one of the knives found in the van after the incident, noting that Navarro had observed Ramirez leaning into the van just prior to his being detained, but could not see "if Mr. Ramirez was touching something in there, putting something in there, or taking something out." Defense counsel suggested, "Could it have been that time that perhaps Mr. Ramirez touched those knives?"
During rebuttal, the prosecutor responded by saying, "Another point of speculation was that defense attorney was asking, well, did [Ramirez] touch the knife when he was in the car? When he went back to the car at the house and . . . the officer testified that the guy had either went back to the car and might have got something out, put something in. You know . . . the defense side doesn't have to call any witnesses at all in this case. But if they wanted any answer to that, the way to do that is to present evidence, not to ask you to speculate about that."
Ramirez argues that his counsel was ineffective for failing to object to the prosecutor's argument. Since he was the only witness who could have presented evidence on this issue, the prosecutor's statements were an impermissible commentary on Ramirez's failure to take the stand.
The doctrine of Griffin error bars the prosecutor from arguing that the jury should draw an inference adverse to the defendant because he did not testify at trial in legitimate reliance on his Fifth Amendment privilege against self-incrimination. (Griffin v. California (1965) 380 U.S. 609, 615.) However, "[a] prosecutor may fairly comment on the state of the evidence, including a nontestifying defendant's failure to proffer material evidence or witnesses to rebut the People's case. Such comment crosses the Griffin line only if the defendant alone could have given such evidence." (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1244.) So may a prosecutor make comments in rebuttal that are fairly responsive to defense counsel's argument and are based on the record. (People v. Daya (1994) 29 Cal.App.4th 697, 715.) And comments by a prosecutor that the defendant failed to provide a rational explanation for the prosecution's evidence or theory of guilt do not constitute Griffin error. (People v. Medina (1995) 11 Cal.4th 694, 755-756.) "We apply a 'reasonable likelihood' standard for reviewing prosecutorial remarks, inquiring whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question." (People v. Roybal (1998) 19 Cal.4th 481, 514.)
Defense counsel's argument asked the jury to speculate as to how Ramirez's DNA got on one of the knives found in the van. The prosecutor's rebuttal argument, after noting that the defense was not obligated to present witnesses, pointed out that the way to answer the question of how the DNA was transferred was to present evidence, not to speculate. The prosecutor's comment about the defense's burden of proof was generalized, rather than specific. He did not, for example, say that Ramirez had a constitutional right not to testify before commenting that the defense presented no evidence of how Ramirez's DNA got on the knife. It is not a given that Ramirez was the only person who could have testified about what he was doing in the van, particularly since Navarro testified that he saw Velazquez hand something to Ramirez just before Ramirez went to the van. The jury could reasonably have assumed Velazquez could have testified for the defense that he handed a knife to Ramirez and told him to put it in the van. There is no reasonable likelihood that the jury interpreted the prosecutor's remarks as referring to Ramirez's decision not to testify. Accordingly, there was no reason for defense counsel to object to the remarks and she was not ineffective for failing to do so.
We further note that the trial court instructed the jurors, as follows: (1) they must decide the case based on the evidence presented in the courtroom, but that counsel's statements during closing arguments are not evidence (CALCRIM No. 222); and (2) Ramirez's decision not to testify could not be used against him (CALCRIM No. 355).
C. Insufficient evidence of battery (count 4) and brandishing a deadly weapon (count 5)
Ramirez also contends that there was insufficient evidence to support his conviction on a charge of committing a battery on Michael when he hit him in the face with a cane and with brandishing a deadly weapon when Velazquez picked up the knife in the van after Ramirez allegedly encouraged him to do so. Both of these events occurred after Michael had driven his car at Velazquez, hitting him, and after Velazquez and Ramirez had retreated to their van, indicating that they wished to stop fighting and had stopped fighting. Since the evidence shows they were acting in self-defense and in defense of others at the time, Ramirez cannot have committed battery or brandished a deadly weapon as a matter of law.
Our task is to decide whether, on the evidence presented, a reasonable trier of fact could have found that the prosecution sustained its burden of proving guilt beyond a reasonable doubt. (People v. Arcega (1982) 32 Cal.3d 504, 518.) In applying this test we presume in support of the judgment the existence of every fact the trier of fact could reasonably have deduced from the evidence. (People v. Fosselman (1983) 33 Cal.3d 572, 578.) We review the record in the light most favorable to the prosecution to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
In connection with the charges of battery and brandishing a deadly weapon, the trial court instructed the jury on self-defense and defense of others, using CALCRIM No. 3470, which notes that the prosecution must prove beyond a reasonable doubt that the defendant did not act in lawful self-defense or defense of another. The trial court also instructed the jury pursuant to CALCRIM No. 3471, which explains the doctrine of self-defense in the context of mutual combat. As given, the instruction provided, "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] AND [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [¶] AND 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] A fight is a mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self defense arose. [¶] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting."
There was no evidence presented at trial which supports Ramirez's self-defense or defense of other theories. Michael and Lopez both testified they believed that Velazquez would try to run over them, their mother or Lopez's girlfriend, with the van. Neither Velazquez nor Ramirez ever said they wished to stop fighting or just leave, and there was no reason for Michael or Lopez to believe that the two would just drive away. In fact, while getting punched Velazquez was attempting to reach for something in the van, as Ramirez urged him to "get the gun." Eventually, Velazquez climbed out of the driver's seat, retrieved a knife from inside the van and chased after Michael and Lopez. Neither Velazquez nor Ramirez took actions that would lead a reasonable person to believe that they were trying to stop the fight.
D. Insufficient evidence to support criminal street gang enhancements
Ramirez contends that the prosecution failed to provide independent proof that Norteño members had committed two or more predicate crimes within a certain time period so as to establish the necessary pattern of criminal activity. According to Ramirez, the evidence is insufficient because the prosecution's gang expert did not have personal knowledge of the circumstances of the crimes introduced at trial, nor did he have personal knowledge that the perpetrators of the crimes were Norteño. We disagree.
1. Gang expert testimony
Officer Leo Prescott of the San Jose Police Department testified as an expert on Hispanic criminal street gangs. Prescott identified Norteño as one of the two primary Hispanic gangs in California and the City of San Jose. Norteño identify themselves with the color red and the number 14, as the letter "N" is the 14th letter of the alphabet. The number 14 may be represented as a Roman numeral, i.e., "XIV," or sometimes with a grouping of four dots or one dot alongside four dots. Norteño will commonly have tattoos that display four dots, perhaps inside a square, as it would appear on a die.
The other primary Hispanic gang in California is the Sureños, and the two gangs are historical enemies. Norteño will call Sureños "scrap" or "scrappa," because they consider them to be "garbage." Gang members from both gangs will ask each other, "Where are you from?" as a direct challenge, and the wrong answer will prompt an assault.
According to Prescott, Norteño gangs have over 2,000 known members in the San Jose area, and engage in the primary activities of assault with a deadly weapon, aggravated assault, murder, auto theft, burglary, and various offenses involving deadly weapons. In his opinion, Norteño gangs had engaged in a pattern of criminal activity in the San Jose area. Prescott was personally familiar with several crimes committed by Norteño gang members, and testified about the details of those cases.
On August 2, 2008, Jesus Uvalles and Raymond Auvigne committed assault with a deadly weapon. The two approached the victim and asked, "Do you bang?" Although the victim said no, Uvalles and Auvigne checked his hands for gang related tattoos and then began to assault him, eventually stabbing him. During the offense, Uvalles was wearing a black T-shirt with "Nor-Cal" in red letters on it, as well as a red webbed belt with the number 14 in the buckle. Auvigne admitted he was a Norteño gang member at the time of the assault. In the subsequent criminal proceeding, Uvalles pleaded guilty to assault with a deadly weapon and admitted the criminal street gang allegation. Auvigne was convicted of assault with a deadly weapon and the criminal street gang allegation was found true.
On February 24, 2008, David Sorto committed felony vandalism. Sorto, along with some other people were at some apartments on Blossom Hill Road. While yelling, "Puro norte," a phrase Norteño use when committing assaults and other crimes, Sorto and the others broke windows and doors, including breaking down one door with an axe. When Sorto was arrested, he had Norteño tattoos on his chest, and he later admitted the gang enhancement allegation.
On February 17, 2008, Freddy Quezada committed assault with a deadly weapon. Quezada confronted the victim and asked him, "Do you bang? Are you a fucking scrap?" Quezada hit the victim over the head with a bottle and kicked and punched him several times as he lay on the ground. Quezada admitted to being a Norteño gang member and admitted the gang enhancement allegation.
Prescott opined that Velazquez was a Norteño gang member based on prior field contacts and crime reports. On many occasions, Velazquez was seen wearing gang-related clothing in the company of other Norteño gang members, and had gang tattoos. Velazquez had also admitted to law enforcement officials that he was a Norteño gang member.
Prescott further opined that Ramirez was a Norteño gang member based on his conduct during the charged offense and on previous contacts with law enforcement. On one occasion, while still a juvenile, Ramirez was observed etching the letter N and the number 14 into city property. Another time, Ramirez's bedroom was searched and numerous Norteño-related items were found there. When Ramirez was booked into jail in relation to this offense, he admitted during his classification interview that he was a Norteño gang member.
According to Prescott, the charged offenses benefitted the Norteño gang, since they inform rival gangs that Norteño are superior and will act violently toward rivals. The offenses also create generalized terror in the neighborhood's residents, who have no gang association, discouraging them from contacting the police to report crime or come to court to testify against gang members. The charged offenses were committed in association with the Norteño gang, as they involved two Norteño gang members, acting in concert to assault someone they perceived to be a Sureño.
2. Analysis
The sufficiency-of-the-evidence standard applicable in reviewing convictions applies to a challenge to a true finding on a gang enhancement allegation. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
The term "criminal street gang" is defined under section 186.22, subdivision (f). The prosecution must show that the "[criminal street] gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period." (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).)The prosecution may utilize expert testimony concerning criminal street gangs to establish the foregoing elements. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) That expert may base his or her opinion, including his opinion on predicate offenses, on hearsay evidence so long as the evidence provides sufficient detail as to who, when, where and under what circumstances the offenses were committed. (In re Leland D. (1990) 223 Cal.App.3d 251, 259.)
In this case, Prescott testified as to three predicate offenses committed by Norteño gang members other than Ramirez and Velazquez. He said he had researched and was "personally familiar" with the cases about which he was testifying. Ramirez complains that Prescott did not have "personal knowledge" of the circumstances of these crimes or that the perpetrators were Norteño gang members, but he cites no authority for the proposition that such personal knowledge is required.
The record indicates that Prescott's testimony as a whole was based upon his personal investigation of Norteño involvement in criminal activity, his first-hand conversations with Norteño gang members and other law enforcement officers, prior cases and convictions, and his reading of police reports. His reliance upon information beyond his own personal experience does not mean that his testimony did not constitute credible evidence of solid value or that his opinions were based upon conjecture and speculation.
E. Failure to object to gang expert's hearsay testimony or request limiting instruction
Presuming that the evidence to support the criminal street gang enhancements was sufficient, Ramirez argues that his defense counsel was ineffective for failing to object to the gang expert's hearsay testimony and for failing to request a proper limiting instruction regarding hearsay.
Ramirez's argument does not withstand scrutiny. The trial court gave CALCRIM No. 1403 to the jury, expressly instructing it on the limited admissibility of gang evidence. In addition, the trial court gave a modified version of CALCRIM No. 360, instructing the jury as follows: "Detective Prescott testified that in reaching his conclusions as an expert witness, he considered statements made by other persons. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true."
Gang experts may rely on hearsay police records in forming an opinion that defendants were gang members who committed the charged crimes for the benefit of a criminal street gang. (Gardeley, supra, 14 Cal.4th at pp. 619-620.) There is no evidence that the cases about which Prescott testified were unreliable in any way and Ramirez had the opportunity to challenge that testimony. The trial court properly instructed the jury on expert testimony. Thus, the jury was advised that the expert's opinion was only as good as the facts and reasons on which it was based, and that the jury should consider the proof of such facts in determining the value of the expert's opinion. Ramirez's trial counsel was thus not ineffective for failing to object to Prescott's hearsay testimony or request a limiting instruction.
F. Contrived self-defense instruction (CALCRIM No. 34 72)
Ramirez contends the trial court erroneously instructed the jury with CALCRIM No. 3472, which states: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." Ramirez claims the instruction should not have been given since it is a misstatement of the law as it fails to limit its application to situations where the defendant provokes a fight in order to create a pretext for using deadly force. Since there was no evidence that Ramirez ever intended to use deadly force, the instruction was not applicable to this case.
We are not persuaded that the instruction applies only in situations where the defendant is seeking a pretext to use deadly force against the victim of his assault. The rule has been stated and applied in assault cases without any reference to deadly force since at least 1958, when a court wrote, "The plea of self-defense is not available to one who has sought a quarrel with the design or apparent necessity for making an assault." (People v. Duchon (1958) 165 Cal.App.2d 690, 693.) In People v. Garcia (1969) 275 Cal.App.2d 517, 523, the court stated the principle as follows: "A man has not the right to provoke a quarrel, go to it armed, take advantage of it and then convert his adversary's lawful efforts to protect himself into grounds for further aggression against him under the guise of self-defense." CALCRIM No. 3472 expresses a common-sense principle of fairness, as well a necessary condition of civilized life: No one should be entitled under law to initiate a conflict and then exploit the occasion to inflict violence.
With that in mind, it is clear there was evidence to support the instruction. While Velazquez directly confronted Lopez, calling him a scrap and pushing him, Ramirez stood nearby, concealing a knife behind his leg. It is reasonable to assume that Ramirez was, at a minimum, providing backup for Velazquez in case Lopez fought back or perhaps pulled a weapon of his own. Under these circumstances, the jury was properly instructed on contrived self-defense.
For that matter, assuming arguendo that CALCRIM No. 3472 should only be given in cases where the defendant is seeking an excuse to use deadly force against his victim, Ramirez could not be prejudiced by the use of the instruction here since the jury found he was armed with a deadly weapon and could have reasonably believed that he and Velazquez were hoping Lopez would fight back so that Ramirez would have an excuse to join in the fight with his weapon.
G. Sentencing under section 654
Ramirez argues that he was improperly sentenced for both his battery on Michael (count 4) and for aiding and abetting Velazquez's brandishing a knife (count 5) though both those offenses were committed with the single objective of repelling Michael's assault on Velazquez. He further contends that he was improperly sentenced for brandishing a knife (count 3) and for false imprisonment (count 1) even though the knife was the means by which he falsely imprisoned Lopez.
Section 654, subdivision (a) provides, in relevant part: "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The purpose of the statute is "to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense--the one carrying the highest punishment." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The section's protection extends to cases in which a defendant engages in a course of conduct that constitutes different offenses and comprises an indivisible course of conduct punishable under separate statutes. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
As this court explained in People v. Braz (1997) 57 Cal.App.4th 1, 10, multiple punishment is permissible notwithstanding section 654 if the defendant "entertained multiple criminal objectives which were independent of and not merely incidental to each other. [Citation.] A defendant's criminal objective is 'determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it.' " We must view the evidence in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.) The proper procedure for disposing of a term banned by section 654 is to impose and stay the sentence. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.)
The trial court did not err in imposing consecutive sentences on both counts 4 and 5. Ramirez hit Michael in the face with a cane, presumably to dissuade Michael from punching Velazquez. Velazquez managed to get out of the driver's seat and retreat into the interior of the van, at which point Michael could no longer reach him. Velazquez then retrieved the knife and, as Michael and Lopez ran to their garage, he and Ramirez chased after them in an apparent attempt to renew his assault. Consequently, the trial court was justified in finding that Ramirez and Velazquez had different criminal objectives when they committed counts 4 and 5.
As to the concurrent sentence imposed on count 3 for brandishing a knife at Lopez, the Attorney General concedes the error. The trial court should have instead stayed the sentence on that count pursuant to section 654. We accept the concession and shall modify the judgment accordingly.
H. Failure to state reasons for discretionary sentencing choices
Finally, Ramirez argues that his trial counsel rendered ineffective assistance by failing to object to the trial court's failure to state reasons for its discretionary sentencing choices. The trial court simply stated it was using the "formula" proposed by the prosecutor, rather than providing reasons for its sentencing choices. Trial counsel did not object, and also failed to argue to the trial court that Velazquez received a shorter sentence than Ramirez, even though Velazquez was the more culpable offender.
Ramirez's argument overlooks the fact that the trial court offered an extensive explanation for its sentencing choices, as follows: "What I'm saying is that what occurred in this particular case were very serious crimes. These people, the victims in this case were doing nothing, made efforts to retreat, to get out of harm's way. And that was met by [Ramirez] and [Velazquez]'s continued action in terms of trying to catch up. And I hadn't-- I have no doubt that in the event that they did catch up with the victims that there would have been a physical assault and that these crimes would have been a lot more serious with respect to knifings and possibly great bodily injury and maybe even death. [¶] I have no doubt that the two defendants in this case were determined to inflict serious bodily injury, and it's only by fate and luck that that didn't happen. . . . [¶] . . . [¶] It's regrettable that the Court does not feel that it can grant the leniency that is requested. I think it's tragic that a young man is going to be spending a significant period of time in custody. But having heard the trial and having heard the victims, what happened to them, in all fairness, it leaves me no alternative but to impose what is recognized as a very serious consequence. But the behavior that was imposed--excuse me, the behavior that was involved was likewise serious, and I have no doubt this will affect the two victims for the rest of their lives."
California Rules of Court, rule 4.433 requires a judge imposing sentence to "[p]ronounce the court's judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law." (Cal. Rules of Court, rule 4.433(c)(5).) The trial court is required to state on the record its reasons for imposing a prison sentence and thereby denying probation. (Id. rule 4.406(b)(2).) "The requirement encourages the careful exercise of discretion and decreases the risk of error. In the event ambiguities, errors, or omissions appear in the court's reasoning, the parties can seek an immediate clarification or change. The statement of reasons also supplies the reviewing court with information needed to assess the merits of any sentencing claim and the prejudicial effect of any error." (People v. Scott (1994) 9 Cal.4th 331, 351 (Scott).)
An objection to the court's statement of reasons underlying its discretionary sentencing choices, or lack thereof, may not be raised for the first time on appeal. (Scott, supra, 9 Cal.4th at p. 353.) As the Scott court explained, "the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are . . . cases in which the court purportedly erred because it . . . failed to state any reasons or give a sufficient number of valid reasons." (Ibid.)
Ramirez seeks to avoid this procedural bar by arguing that counsel was ineffective for failing to object, but he fails to carry his burden on this claim. Here, even if trial counsel had made the objections and arguments urged on appeal, there is no indication in the record that the trial court would have felt compelled to impose a lighter sentence. The court explained at length its reasons for imposing the sentence requested by the prosecution, specifically mentioning the threat of great bodily harm to the victims as well as Ramirez's prior juvenile criminal record.
"Where sentencing error involves the failure to state reasons for making a particular sentencing choice . . . reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence." (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) The point is equally applicable in the context of showing prejudice from supposed ineffective assistance of counsel. Since any objection by defense counsel would have been fruitless, her failure to object did not constitute ineffective assistance of counsel. III. DISPOSITION
The judgment is modified to stay the concurrent term imposed for count 3. As so modified, the judgment is affirmed.
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Premo, Acting P.J.
WE CONCUR:
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Duffy, J.
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Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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