Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR904032.
Jenkins, J.
Defendant Della Rene Sadler appeals the judgment of conviction and sentence imposed after a jury returned guilty verdicts on charges of felony first degree burglary, theft, and vandalism, and on misdemeanor charges of elder abuse and battery of an elder. Defendant contends the trial court should have instructed the jury sua sponte on the defense of accident with respect to the misdemeanor charge of elder abuse, and, in the alternative, that if the trial court had no such sua sponte duty then her counsel was ineffective for failing to request the instruction. Defendant also contends the trial court abused its discretion by imposing consecutive terms on the three vandalism counts. We affirm.
Procedural Background
On December 22, 2005, the District Attorney of Lake County filed an information alleging in twelve counts that defendant committed various offenses between January 17 and March 4, 2005, against the person and/or property of family members Florance Johnston, Florance’s son David Bryant, and his wife Delores. Trial by jury began on February 28, 2007. On March 13, 2007, the jury returned guilty verdicts on the following counts: count 1— felony burglary of an inhabited house and trailer coach occupied by Florance Johnston (Pen. Code, § 459); count 4—misdemeanor theft from an elder, Florance Johnston, of $400 or less (§ 368, subd. (d)); counts 7, 9, and 10— felony vandalism of vehicles and/or personal property of David Bryant, Florance Johnston and Delores Bryant, respectively (§ 594, subd. (a)); count 8— felony burglary of a locked vehicle belonging to David Bryant (§ 459); count 11—misdemeanor elder abuse of Florance Johnston (§ 368, subd. (c)); and count 12—misdemeanor battery on Florance Johnston, an elder (§ 243.25).
Further statutory references are to the Penal Code unless otherwise noted.
Pursuant to section 1118.1, the trial court entered a judgment of acquittal on counts 2, 3, 5 and 6. The trial court also entered a judgment of acquittal on count 4 (felony theft from an elder) but sent the lesser included offense of misdemeanor theft from an elder to the jury. The jury thus returned guilty verdicts on all the charges submitted to it.
On August 17, 2007, the trial court sentenced defendant to the lower term of two years’ imprisonment on count 1 (burglary) and the midterm of two years on each of counts 7 (vandalism), 8 (burglary of a vehicle), 9 and 10 (vandalism). The court designated count 7 the principal term and ordered counts 1 and 8 to be served concurrently, and counts 9 and 10 to be served consecutively, to the principal term. On the misdemeanor violations, the court stayed the 180-day sentences imposed in counts 4 and 12 pursuant to section 654, and ordered the 180-day sentence imposed on count 11 to be served concurrently with the principal term. The total prison term imposed was three years four months, comprised of two years on the principal term (count 7) plus one-third the midterm (8 months) on each of the consecutive sentences imposed on counts 9 and 10, pursuant to section 1170.1, subdivision (a).
Facts attributed to each individual are taken from their testimony at trial.
Prosecution Case
Florance Johnston (Florance) stated she was 10 years old when defendant, her niece, was born to Florance’s older sister, Olita Hall. Defendant lived most of her early life in Florance’s household, until she left at age nine to live with her mother. Florance always thought she and defendant had a good relationship.
At the time of the events in question, defendant lived in a trailer home at No. 5925 Mohican Place in Clearlake. Adjacent to defendant’s property and separated from it by a fence was No. 5935 Mohican Place, owned by defendant’s mother and Florance’s sister, Olita Hall. On one occasion when Florance went to visit defendant for a few days, Olita told her that if she would move to Clearlake permanently, help to look after defendant and try to mend the relationship between Olita and defendant, then she (Olita) would give her (Florance) half ownership in No. 5935. Florance agreed, and in June 2003, her name was added to the property deed in recognition of her part ownership. A few weeks later, Florance moved into No. 5935 permanently and began to make improvements. Florance cleaned up the trailer home, hung new wallpaper throughout, put in new carpets, and installed her various household items, some of which she purchased brand new. No. 5935 was her home at that point and she had no other home at that time.
Subsequently, Florance’s sister Olita came to stay, and lived with her at No. 5935 from June through October 2004. Olita only had her clothes and medications, and slept on Florance’s couch. During that time, defendant started coming over on a daily basis to visit her mother Olita. However, Florance never gave defendant a key to her residence at No. 5935. The only person Florance gave a key to was her son, David Bryant. When Florance first moved to No. 5935, her son David was having marital problems so she suggested he live on her property in his small travel trailer. David’s trailer was parked between No. 5935 and defendant’s home, right up alongside the dividing fence.
In October 2004, Florance locked up her trailer home and went to visit her husband in Porterville in order to work out some problems. She always intended to return to her home at No. 5935. David was still living in his trailer and he looked after the property initially. Everything was in “good shape” when she left. Florance returned to her Clearlake home on the afternoon of March 4, 2005. The place was a mess. Locks on the chain link fence to the front of the property had been cut, and the rear wooden fence had been knocked down and was lying on the ground. In its place was a rope with sheets draped over it. Trash was lying all around.
As Florance gathered together some trash, defendant came running out of Florance’s trailer home “cussing” and “slinging her arms.” Defendant asked Florance, “What the F’s going on?” Florance replied, “Rene, what are you doing? What’s going on here?” Defendant then struck Florance on the left side of her face with a half-clenched fist and knocked her over. Florance fell onto the hitch of a trailer and her glasses were knocked off and broken. Florance had bruising on her hip, shoulder and back due to the fall and was sore for a few days afterwards. Her face was scratched and her jaw was sore. Florance said defendant called her a “motherfucker” and told her she didn’t live there anymore and wasn’t welcome. Florance noticed that someone else besides defendant was also in her trailer home—she saw defendant’s grandson Thurman was sitting at Florance’s kitchen table doing his homework. Florance asked defendant for a phone to call 911. Thurman handed defendant a phone, which Florance recognized as belonging to her, and defendant purported to call 911. Florance’s son David asked defendant for the phone so he could call 911 as well. Defendant said, “Yeah, here” and then broke the antenna off the phone before handing it to David.
After the police arrived and Florance talked to them, she went to look over her residence. Florance noticed the locks had been changed. Florance’s couch, TV and TV stand were all out in the front yard. Defendant’s couch, TV and TV stand were in the living room. Florance noticed that her microwave was now too dirty to use. Large strips of the wallpaper had been torn off and it was all in disarray. All her knickknacks had been thrown outside into the front yard. Florance’s bed had been removed and a bed had been made up on the floor for defendant’s grandson Thurman. All his stuff was in the bedroom, including toys and a video game. Thurman’s clothes were in Florance’s closet and her clothes had been removed. All Florance’s toiletries had been removed from the bathroom. Florance found her bedcovers and clothes, along with all her family pictures out in the yard soaking wet.
It appeared to Florance someone had been living in her trailer home during her absence because there were skillets on the stove full of grease. Her refrigerator held a large pan with chicken in it. There was meat in the freezer. In her closet, Florance found bottles of spirits, a case of beer and 10 gallons of wine. None of those items were in her trailer when she left. Various items belonging to defendant were lying throughout the residence.
Florance stated that she paid various bills for No. 5935 during her absence between October 2004 and March 5, 2005, including utilities such as sewer fees, garbage collection, electricity and water. During her absence, her phone number was changed. Florance paid the phone bill for that period as well. On the bill, she recognized certain phone numbers belonging to defendant’s friends and family. Florance did not give defendant permission to be inside her residence when she was gone, nor to use her phone.
Florance’s son, David Bryant, testified that he lives in his 23-foot camp trailer on his mother’s property at 5935 Mohican Place in Clearlake. David stated that before March 4, 2005, he had last been at the property on January 17, 2005. His mother left a few months before that, and when she left her sister Olita was staying with her. David took care of Olita for a month or so after his mother left, during which time he stayed in his mother’s room and Olita slept on the couch. To David, it looked like Olita had suffered a stroke or something. He had to help her to the bathroom. During that time, Olita needed 24/7 care. At some point, David’s uncle came and took Olita away with him. After Olita left, she never came back. David did not know if Olita had a key to Florance’s residence but she did not have a key to his trailer. When David left the property on January 17, 2005, both his and his mother’s trailers were in “spotless” condition and he double checked they were locked.
Upon David’s return on March 4, 2005, the property was a “disaster.” David saw defendant come out of the trailer home and approach his mother. Defendant was “using vulgar language, screaming, yelling things like, ‘You don’t live here anymore,’ that she was the boss of everything, you know, that type of thing.” David saw defendant use the palm of the hand to strike his mother on the side of her head and face. The blow knocked his mother down under a little trailer and broke out one of the lenses in her glasses. David took hold of defendant’s arm when he saw she was going for his mother again. He said something to defendant like, “This is my mother and your aunt,” and defendant just sat down.
David discovered someone had pried the door to his trailer open, his batteries had been removed and the wires to his water heater had been cut. The trailer had been dragged from where he left it, the tires had been flattened, and one “was clean almost off the rim.” Inside the trailer, David noticed someone had rummaged around in his belongings and stuff was scattered all over the place. He said “it just looked like a war zone[,] . . . like somebody ransacked and took what they wanted and what they didn’t tear up or destroy they just threw down.” Inside his trailer, he found a number of items that did not belong to him, such as some glasses and a card that had defendant’s name on it.
In addition, someone broke into his Suzuki Samurai, a jeep-type vehicle, he’d left parked there and covered over. The steering column had been broken into, the ignition had been torn off and the wires cut out. The stereo and speakers had been removed. A new top he’d recently installed on the vehicle was destroyed. Inside his vehicle, David found some tools with the initials “RH” on them and one said “Hall” on it. To David, that signified the name of his cousin, defendant Rene Hall.
David also stated that when he went inside his mother’s trailer home “it looked like a different house” on account of the disarray. On the kitchen table in his mother’s trailer home, David saw various medications that had been stored in a cupboard in his own trailer. Lying beside the medications was a handwritten note, presented to the jury as Exhibit 55, stating “Run ads in newspapers about David and Florance, prescription drug sale, items belonging to Sadler’s family. Call David’s doctor telling them he is selling his prescriptions.”
Also testifying was David’s ex-wife, Delores Bryant (“Delores”). Delores said she knew both Florance and defendant. Delores visited Florance on a number of occasions at No. 5935, and during such visits she and defendant sometimes would chat or go to a yard sale together. In November 2004, Delores was remodeling her home and wanted David’s help in dealing with the contractors. She drove to Clearlake in her 1990 Isuzu pick up truck. Because David was driving her back, Delores parked her pickup in the driveway by the front fence, locked it and put a cover over it.
Delores next returned to the property on March 4, 2005, along with her ex-husband David. Florance and her husband arrived about ten minutes later. Delores stated that “upon our arrival, we was just devastated.” When she and David left, “the place was [in] immaculate condition. Everything was in its place, had tomato plants growing up by the fence and had flowers growing and the ground was clean, no garbage, no nothing.” Describing the scene on March 4, Delores stated: “It was a massacre there, just like somebody come in with a bulldozer and just — everything was just out of the trailer. Everything was just thrown in mud. David’s trailer was moved from one side of the yard over to the driveway. My truck was pulled across the street and up the road. It was just like somebody had a free-for-all in a garbage dump. I mean, all the possessions were in mud and water.” All of Florance’s personal items, “household furnishings, pictures, clothing, towels, pillows, bedding, it was all outside in the mud. It’s like somebody went in there and . . . just grabbed it up and just threw it.”
As they made their way towards the residence, Florance said, “My God, what happened here?” Defendant came out of the trailer home “in an obnoxious rage, flying words, just in an anger mode, just saying ‘What the hell you doing here? You don’t live here anymore. You abandoned this property. What the F-ing are you doing here?’ ” Defendant also told Florance that “You abandoned this stuff, so I got to remove this stuff.” Defendant ordered Florance off the property then went up to her and struck her in the face with her hand partly closed. The blow knocked Florance over and she fell onto the corner of a trailer parked there. Her glasses were broken. David caught hold of defendant’s arm to stop her from hitting his mother again. Defendant then sat down on a tree stump. When David asked defendant if he could use the phone her grandson Thurman had handed her, she stated, “ ‘I’ll let you use the phone,’ and she took it and she busted the antenna off of it and threw it on the ground.” Florance later showed Delores the bruises on her back caused by her impact with the trailer when she was knocked over by defendant.
After all this, Delores noticed her truck had been moved off the property. She walked across the street to where she saw her truck was parked. The driver’s side door had been pried open. The steering column had been broken open to unlock it and the CD player was missing. The grill was broken and cracked in several places and the hood had pry marks on it. Delores did not leave any keys for the vehicle at the property and did not give anyone permission to move it. Delores stated that in December 2004, defendant called and asked if she wanted to sell her pick up because defendant had a friend who needed parts for the same type of truck. Delores told defendant she was not interested in selling the pickup. During that telephone conversation, she noticed via caller ID that defendant was calling on Florance’s number.
The jury also heard from Officer Tomas Riley of the City of Clearlake Police, who responded to the scene on March 4, 2005. At the scene, Riley first contacted Florance and her son David. He was told defendant had broken a phone when David attempted to call the police. Riley took possession of the phone and found the antenna where he was told the altercation had taken place.
Riley then went up to the trailer residence at No. 5935 where he contacted defendant, who came out of the house and met him on the porch. Defendant was subsequently placed under arrest and gave a statement after being advised of her Miranda rights. In her statement, defendant said that she had pushed past Florance because her dog was loose and she was afraid it would bite someone. Defendant did not see Florance fall, but assumed she must have lost her footing because she fell on the fence. Defendant reached to help Florance up but she misconstrued defendant’s movements as aggressive and began swinging at defendant, causing scratches on her arms. David then ran up and kneed defendant in the stomach and back. Riley observed defendant was “able to move about fine at the scene and then to be placed in handcuffs and in the back of my patrol car.” Finally, Riley told the jury that a check of police records revealed no report of burglary, theft or vandalism related to No. 5935 Mohican Place.
Miranda v. Arizona (1966) 384 U.S. 436.
Defense Case
Defendant’s 17-year-old grandson, Thurman Hardy, testified about the events that occurred when he was 15 years old. At that time, his mother was in Oregon and he was living with defendant at No. 5925 Mohican Place while attending school. The trailer next to them was No. 5935 Mohican Place, where Florance and his great-grandmother (Olita Hall) lived until January 2005. At some point in February 2005, Thurman, defendant and an individual named Greg Morgan went on a three-day trip to Humboldt County. The property next door at No. 5935 looked fine when they left. When they returned, No. 5935 “was a mess. It was broken into, trashed.” Florance’s trailer had been broken into, vehicles had been broken into, and “there [was] stuff just strewn out around the yard.”
Thurman stated that two weeks or so elapsed between the burglary and the day that Florance returned. Thurman denied placing any beer or alcohol in Florance’s trailer or taking any property from her residence. After the break in, he kept some of his stuff in Florance’s trailer and slept overnight there a couple of times a week to make it look like somebody was living in it and deter any further burglaries. Defendant never spent any time in Florance’s trailer.
Thurman witnessed part of the incident between defendant and Florance while standing in the doorway of Florance’s residence. He had been alone in the residence and defendant had not been in Florance’s residence at any time that day. Thurman heard words exchanged between his grandmother (defendant) and Florance, but did not hear defendant yelling anything about Florance not living there anymore. He did see defendant’s dog, and it was outside the gate.
Also testifying was defendant’s daughter, Lisa Underwood. Lisa stated that in March 2005 she was living in Oregon and her son Thurman was living with defendant in Clearlake. Lisa received information that defendant was in jail and her son was without a custodian, so she went to Clearlake and took Thurman back to Oregon with her. Subsequently, Lisa received a phone call that defendant was about to be released from jail, so she went back to Clearlake about a week after she collected Thurman. At that point, defendant showed her certain injuries on her arm and back, and Lisa took photographs of those injuries that were shown to the jury.
Further testimony was received from defendant’s brother, James Hall. Hall said that at some point in March 2005 he paid certain phone and utility bills relating to No. 5935 Mohican Place after Florance called him complaining about a telephone bill. Hall also said that before he learned defendant had been arrested in connection with an incident at No. 5935, she called and told him there had been a break in at the property and a lot of her stuff had been taken. Defendant told him she was going to clean the place up and take the matter to court.
Defendant also testified. She stated Florance is her aunt and she has known Florance all her life. No. 5925 Mohican Place, Clearlake, has been defendant’s home since 2001. The property next door at No. 5935 has been in the family since 1996, and joint ownership was transferred to Florance and her mother Olita Hill in June 2003. Olita lived at No. 5935 for a time until she left in January 2005. During that period she could not get around much and was partially paralyzed on her left side from a stroke. Olita required constant care on account of her disabilities and poor health, and Florance was the one looking after her. Defendant often went to visit but did not provide any of the care her mother required.
At the end of October 2004, Florance left without notice after asking defendant to take Olita to a doctor’s appointment in Humboldt County. When defendant and Olita returned from the doctor’s appointment, Florance was gone and David had left as well. After that, Olita had to stay with defendant and defendant had to look after her. Defendant was irritated at Florance for leaving her to care for Olita. At some point, David came back and defendant asked him when his mother (Florance) was coming back, but David told her he did not know. David himself would just “kind of come and go” but did not live continuously at No. 5935 after his mother left.
Shortly after Olita went to live in a care home in Humboldt County, defendant, defendant’s grandson and Greg Morgan went to visit her. When they left, everything was secure and in order at No. 5935, but when they returned “it looked like a bomb had went off.” Defendant tried to call Florance numerous times about the situation but she never answered. Even before that incident, defendant called Florance many times but only reached her once, and Florance said “she didn’t think she would be coming back.” Defendant spoke to her mother Olita about the situation. Olita told defendant to “go in there and try to clean up what [she could] and pack Florance’s belongings and put them in the shed to where they’ll be safe.”
Defendant stated that the locks on Florance’s trailer home had been forced open and no longer worked properly, so she replaced them. The contents of the trailer were in complete disarray, so defendant salvaged whatever stuff had not been destroyed and packed it up in boxes and black plastic bags. Defendant said she had moved her couch into Florance’s trailer home before the burglary because her mother Olita could no longer sleep on Florance’s small loveseat. After the burglary, defendant did not live at No. 5935, but would only go over about once at week. On account of her disabilities — defendant had two complete knee replacements before May 2005 — she does not “get up and go that often.” Defendant continued to live in her own residence at No. 5925 but her grandson Thurman would go over to Florance’s trailer home to “do homework and listen to his loud music . . . and just kind of hang out, let somebody kind of know that it’s being occupied.”
Defendant denied breaking into Florance’s trailer home, stealing anything from the trailer or in any way vandalizing the trailer. Defendant denied breaking into David’s vehicle or his living quarters. She admitted she owns tools marked with “Hall” or “RH” but said if any of those tools were found in David’s vehicle then that was because Florance had borrowed them at some point, as was her habit.
Defendant explained that while looking around for salvageable items to store away she came across a little bag full of medications that she took into Florance’s trailer. Defendant admitted she wrote the note about David selling medications because “he was selling drugs to my mother, and I wanted him to quit.” Defendant said she saw David “take the pills . . . out of his prescription bottle and give [Olita Hall] so many and then take money in return.” However, she denied she ever entered David’s trailer, and denied stealing anything from it or vandalizing it.
Regarding the assault on March 4, 2005, defendant stated she was sitting on the porch when Thurman opened the door and said that “they were all out front.” Defendant went around to meet them, walked up to Florance and “very quietly [] told her that I’m going to hate her for a very long time” because she ran off and left Olita there to fend for herself. Defendant did not strike Florance, but admitted she pushed her, stating: “Because she was blocking my way because I wanted by. They had let my dog go, and it’s very well known to have bitten a few people.” Then David ran over and started hitting defendant. The antenna on the phone defendant was holding in her hand was broken off on the side of the small luggage trailer when David grabbed her arm and twisted it. Asked on cross to describe how she pushed Florance, defendant said she “took and shoved her right up in through here” with an open palm on the left shoulder area. Defendant said she packed up Florance’s belongings and put them into a smaller tent trailer after the burglary but denied saying she had “moved them out.”
In their testimonies during the prosecution’s case-in-chief, Florance stated that defendant’s dog, Taz, was not around when defendant struck her, Delores stated she did not see the dog during the incident, and David said that Taz was “not there that day” and he did not hear it bark as it usually did when someone approached.
Discussion
A. Sua Sponte Accident Instruction
Defendant contends that the trial court erred by failing to instruct sua sponte on the defense of accident. “The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime.” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) The court is required to instruct sua sponte on defenses on which a defendant relies, or which are not inconsistent with the defendant’s theory of the case. (Id. at p. 389.) The court only has a sua sponte duty to so instruct, however, if the defense is supported by substantial evidence. (Ibid.) Substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable juror to find reasonable doubt as to the defendant’s guilt. (People v. Salas (2006) 37 Cal.4th 967, 982-983.)
The defense of accident instruction is CALCRIM No. 3404, which states in part: “The defendant is not guilty of [abuse of an elder] if she acted without the intent required for that crime, but acted instead accidentally.”
On this record, we conclude the trial court was not required to instruct sua sponte on the accident defense. First, there is no evidence defendant relied on the theory of accident. In closing argument, defense counsel focused entirely on the property crimes, suggesting to the jury it was implausible that defendant, a “lady who had two knee surgeries,” is “somewhat obese . . . [and] in her 50’s” could loot the property in such a manner, and also that “this is a civil family dispute [that] doesn’t belong in the criminal courts.” As to the misdemeanor elder abuse and battery counts, however, defense counsel initially stated, “I would concede . . . reasonable persons could disagree on that.” Later in his closing, defense counsel added: “And so just on the misdemeanor thing, I’m going to submit that to you for your decision. But I do want you to take a look at the pictures [of defendant’s injuries]. She didn’t say it was self-defense, but it goes to the credibility of the complaining witness.” Thus, there is no evidence defendant relied on the accident defense. If anything, defendant suggested the altercation was more two-sided than indicated by the prosecution witnesses.
Second, even if it could be inferred from the record that defendant relied on the accident defense, no sua sponte instruction was required because the defense is not supported by substantial evidence. We discount for present purposes, as we must, the testimony of the three prosecution witnesses who said defendant struck Florance in the face, and accept defendant’s version of events. However, even defendant’s version of events does not amount to substantial evidence of accident. Defendant stated she wanted to get past Florance to retrieve her dog. That is merely a reason or excuse for her actions and connotes nothing accidental. Rather, defendant said Florance “was blocking my way because I wanted by” so she “took and shoved [Florance] right up in through here” with an open palm on the left shoulder area and with sufficient force to knock her to the ground, break her glasses, and inflict injury to her hip, shoulder and back. We see nothing accidental in defendant’s actions. Accordingly, her claim of instructional error fails.
Defendant’s reliance on People v. Gonzales, supra, is wholly inapposite. There, the court of appeal found substantial evidence for the accident defense where defense witnesses testified at trial that the victim’s injuries were accidental and the victim herself had testified at the preliminary hearing that she was struck by the door accidentally as appellant entered the bathroom. (People v. Gonzales, supra, 74 Cal.App.4th at p. 390.)
B. Ineffective Assistance of Counsel
Defendant also contends that even if the trial court had no sua sponte duty to instruct on accident, her trial counsel’s failure to request the instruction was ineffective assistance and she was prejudiced thereby. “To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington (1984) 466 U.S. 668, 694.)” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
As it relates to jury instructions, therefore, the obvious corollary is that defense counsel is not ineffective if he fails to request an instruction which the trial court is under no duty to give (see People v. Cunningham (2001) 25 Cal.4th 926, 1008), and a trial court is under no duty to give an instruction unless it is supported by substantial evidence. (People v. Stitely (2005) 35 Cal.4th 514, 551.) Accordingly, our prior discussion on the accident defense is dispositive. Because there was no substantial evidence to support an accident defense, trial counsel’s failure to request an accident instruction did not constitute ineffective assistance. (See People v. Dennis (1998) 17 Cal.4th 468, 541 [claim of ineffective assistance premised on failure to request jury instruction must fail where defendant was not entitled to such instruction].)
C. Imposition of Consecutive Terms
Defendant contends the trial court erred by imposing consecutive sentences on her section 594 convictions for vandalism. Pursuant to California Rules of Court, rule 4.425 (Rule 4.425), the “[c]riteria affecting the decision to impose consecutive rather than concurrent sentences include . . . whether or not: (1) The crimes and their objectives were predominantly independent of each other; (2) The crimes involved separate acts of violence or threats of violence; or (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.” (Rule 4.425(a).) Rule 4.425(b) further provides that the court may also consider other criteria in deciding whether to impose consecutive rather than concurrent sentences, including “[a]ny circumstances in aggravation or mitigation . . . except: (1) A fact used to impose the upper term; (2) A fact used to otherwise enhance the defendant’s prison sentence; and (3) A fact that is an element of the crime may not be used to impose consecutive sentences.” (Rule 4.425(b).) We review a trial court’s decision to impose consecutive sentences for an abuse of discretion. (See People v. Scott (1994) 9 Cal.4th 331, 349 [whether to impose consecutive rather than concurrent sentences is one of various “discretionary choices” falling to the trial court at sentencing].)
Defendant mistakenly asserts the court imposed consecutive terms for counts 8, 9 and 10. Count 8, however, is vehicular burglary of David Bryant’s vehicle, which the court imposed concurrent to the residential burglary conviction on count 1. However, at sentencing, the trial court mistakenly refers to count 8 as count 5,a charge of grand theft on which the court earlier entered judgment of acquittal. Count 8 is properly shown as concurrent in the Abstract of Judgment.
Defendant alludes to section 654 in discussing the issue of concurrent versus consecutive sentencing, but section 654 is irrelevant to those considerations. (People v. Deloza (1998) 18 Cal.4th 585, 594 [stating “section 654 is irrelevant to the question of whether multiple current convictions are sentenced concurrently or consecutively. Rather, if a defendant commits two crimes, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, whether concurrent or consecutive. [Citation.] Thus, the question of whether sentences should be concurrent or consecutive is separate from the question of whether section 654 prohibits multiple punishment.”].)
Here, the trial court imposed the midterm of two years on each of the three section 594 convictions for vandalism—counts 7, 9 and 10. The court imposed a total prison term of three years four months, comprised of two years on the principal term (count 7) plus one-third the midterm (8 months) on each of the consecutive sentences imposed on counts 9 and 10, pursuant to section 1170.1, subdivision (a). The court explained its decision to impose consecutive sentences on the vandalism counts as follows: “The crimes and their objectives were predominantly independent of each other, the crimes involved separate victims and separate items of personal property.”
The trial court correctly noted that the crimes involved separate victims, viz., Florance Johnston, and David and Delores Bryant. Although the fact of separate or multiple victims is not specifically mentioned in Rule 4.425, trial courts may properly consider that factor as a basis for imposing a consecutive sentence where not exempted under Rule 4.425(b). (People v. Calhoun (2007) 40 Cal.4th 398, 408; see also People v. Valenzuela (1995) 40 Cal.App.4th 358, 363-364; People v. Leung (1992) 5 Cal.App.4th 482, 504-505.) Moreover, the trial court also noted the acts of vandalism were directed against separate items of personal property, viz., Florance’s trailer home, Delores’ Isuzu pick-up truck, and David’s camper trailer, and there was no evidence to suggest these acts of vandalism were committed so closely in time and place as to indicate a single period of aberrant behavior. Accordingly, we cannot say the trial court abused its discretion by relying on these factors to impose consecutive sentences on the vandalism convictions.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.