Opinion
G044039 Super. Ct. No. 09CF2977
11-28-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICIO ARELLANO SANCHEZ and RICARDO MINOLTA JIMENEZ, Defendants and Appellants.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Sanchez. Sylvia Whatley Beckman, under appointment by the Court of Appeal, for Defendant and Appellant Jimenez. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant Sanchez.
Sylvia Whatley Beckman, under appointment by the Court of Appeal, for Defendant and Appellant Jimenez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendants Patricio Arellano Sanchez and Ricardo Minolta Jimenez guilty of kidnapping (Pen. Code, § 207, subd. (a); all further statutory citations are to the Penal Code unless otherwise noted) and first degree residential burglary (§§ 459, 460, subd. (a), 462, subd. (a) [person other than perpetrator present at time of burglary]). The jury also found Sanchez committed assault with a firearm (§ 245, subd. (a)(2)), personally used a firearm (§§ 12022.53, subd. (b), 12022.5, subd. (a)), and that Jimenez was vicariously armed (§ 12022, subd. (a)(1)).
Defendants contend the trial court abused its discretion by imposing an upper-term sentence for kidnapping, and by imposing a consecutive term for burglary. For the reasons expressed below, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008, Juan Carlos Sanchez Rojas (Juan Carlos) was offered a construction job in Texas by an acquaintance, Juan Sanchez. Juan Carlos accepted and drove to Dallas, Texas, with his brothers Jose Delfino (Delfino) and Armando, defendant Jimenez and a man identified only as "El Maniaco."
When they arrived in Texas, Juan Sanchez revealed his business actually involved illegal check cashing. Juan Sanchez kept the brothers separated, and warned them if they did not follow his instructions and work for him, he would harm them and their families. The men wore dirty clothes as if they had been working, and cashed checks with counterfeit identification at stores and gas stations. Jimenez shadowed Juan Carlos to "make sure" he did what he was told. The group also passed fraudulent checks in Georgia and Florida. Juan Carlos identified defendant Sanchez (evidently no biological relation to Juan Sanchez) as one of the men who "would give out the checks." Juan Carlos previously had shared a home with Sanchez in California.
In November 2008, Delfino told Juan Sanchez he no longer wanted to participate in the scheme. Juan Sanchez responded he was going to "'show you what I can do if you don't want to [work].'" He kicked Delfino in the groin, punched him in the rib cage, and slapped him. Delfino apologized. Juan Sanchez announced they were now all "part of La Mafia Del Tio" and would "'do what I say.'"
When the group returned to Santa Ana around January 2009, Juan Carlos told Juan Sanchez he no longer wanted to participate in the scheme. Juan Sanchez threatened him and orchestrated a beating.
On the evening of March 2, 2009, Juan Carlos was at a Santa Ana apartment with brothers Armando and Jose Enrique (Enrique), Enrique's wife Ermilia Lopez, and their children. Juan Carlos was taking a shower when he heard a commotion, screaming, and what sounded like a gunshot. He left the bathroom, and encountered defendant Sanchez, who had a gun, Jimenez, and El Maniaco, in the apartment. The men assaulted Armando, hitting him on the head, grabbing him by the arms, and taking him away in a car. Ermilia called 911.
Enrique and Ermilia testified defendants and a third man knocked at the door and explained they were looking for Juan Carlos and Armando. The couple told them Juan Carlos and Armando were not there and tried to close the door, but the men forced their way inside. Sanchez removed a small gun from his waistband. Jimenez grabbed Enrique from behind and pushed him against a wall. During the struggle, Sanchez pistol-whipped Enrique. Sanchez and the third man grabbed Armando, who agreed to go with the assailants if they would release Enrique. At some point, Sanchez fired the gun or the weapon discharged. Sanchez said something to Enrique like, "'If you don't stay right here [or still], I'm going to leave you laying on the floor.'"
The assailants fled with Armando. Enrique and Juan Carlos followed. Sanchez doubled back and said, "'What are you looking at, mother fucker[.]'" Enrique warned Juan Carlos, "'Watch out . . . [h]e's coming back and he's got a gun.'" The brothers went upstairs and watched from a railing as a gray or green car, parked near the stairwell, sped off. Jimenez drove, while Sanchez, Armando and the third man sat in the back seat.
After the police arrived, the group received a telephone call from Armando. In the background they heard Jimenez exclaim "'you son of a bitch[, t]ell them to go to Northgate.'" Other calls came in stating the kidnappers wanted Juan Carlos. Juan Carlos, accompanied by a police officer, went to the Northgate Market, but the kidnappers did not show up.
Juan Carlos dialed a number he had for Juan Sanchez, and spoke to Edgar Arellano, defendant Sanchez's brother, who gave the phone to Jimenez. Juan Carlos asked Jimenez if his brother was all right, but Jimenez asked if Juan Carlos was "'ready or are you not ready'" to go to work, and directed Juan Carlos to "'go to Main and 5th and then, we'll pick you up.'" Juan Carlos went to the location with a police officer. About 30 minutes later, Juan Carlos spotted Jimenez's truck and alerted surveilling officers, who detain and arrested Jimenez and Sanchez.
Armando was not in the truck, and the arresting officer did not find a gun. Sanchez wore a necklace inscribed with "Pato Arellano, La Mafia Del Tio, Patrick Delfin 13." A few hours later, investigators learned Armando was in Mexico.
Jimenez's godmother testified she was eating and chatting with Jimenez and his girlfriend on March 2 until about 8:00 p.m. Around 11:00 p.m., Sanchez and Jimenez came to her home in a black truck. Sanchez said goodbye, and stated he would be looking for work elsewhere. Sanchez's girlfriend testified she was with Sanchez all day on March 2 until he left about 9:00 p.m. to buy diapers.
The jury rejected the alibi defense both defendants offered and convicted them of the charged crimes. In July 2010, the trial court sentenced Sanchez to 19 years and four months in prison, comprised of the aggravated eight-year term for kidnapping, a consecutive 10-year term for use of a firearm, and a consecutive 16-month term (one-third the middle term) for first degree burglary. The trial court sentenced Jimenez to 10 years, four months in prison, comprised of the aggravated eight-year term for kidnapping, a consecutive one-year term for being armed with a firearm, and a consecutive 16-month term (one-third the middle term) for first degree burglary.
II
DISCUSSION
Defendants argue the trial court abused its discretion by imposing an upper term for kidnapping and a consecutive term for burglary because no evidence supported the trial court's stated reasons, it used the same facts to justify its separate sentencing choices, and improperly considered defendants' immigration status. The Attorney General responds defendants forfeited their claims, and the claims lack merit in any event. A. Defendants Forfeited Claims of Sentencing Error
Sanchez joins in Jimenez's arguments and contentions.
A trial court must state reasons for imposing an upper-term sentence on any count or enhancement punishable by a sentencing range. (§ 1170, subd. (a)(3); Cal. Rules of Court, rules 4.401, 4.403, 4.406(b).) But a defendant who has a meaningful opportunity to object at the sentencing hearing, and who fails to do so, forfeits most sentencing claims on appeal, including a claim the trial court failed to state reasons, gave an insufficient number of valid reasons, or imposed sentence in a procedurally or factually flawed manner. (People v. Scott (1994) 9 Cal.4th 331, 354-356.) "[A] meaningful opportunity to object" to the court's sentencing determinations "can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Id. at p. 356.) "The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as 'tentative' so long as it demonstrates a willingness to consider such objections." (People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez).) In Gonzalez, the Supreme Court held the defendants had a meaningful opportunity to object after the trial court stated the sentences and its reasons at the sentencing hearing because the defendants objected on other grounds without the court declaring the objections untimely or impermissible. (Id. at pp. 752, 755.)
Defendants argue they did not have a meaningful opportunity to object because "the court did not provide counsel with any indication of the reasons the court would rely upon to support the indicated maximum punishment" before judgment was pronounced.
At the sentencing hearing, the prosecutor stated, without contradiction by defense counsel, the trial court had informed the parties of a "proposed sentence." After the court announced it had read the sentencing reports, and Jimenez's godmother and Sanchez's girlfriend provided statements in defendants' support, the court stated it had "tentatively indicated 19 years four months for Sanchez, and [10] years four months for Jimenez," and asked if "either side would like to say anything by way of argument . . . ." Both counsel argued mitigating circumstances on behalf of their clients. During the sentencing pronouncement, the court noted it was reserving the issue of restitution, and asked if anyone wanted to "talk about" it. Jimenez's lawyer said, "No." The court then continued with the sentencing, advised defendants of their right to appeal, and ordered "the defendants . . . remanded to the custody of the Sheriff for delivery to [prison authorities], unless there is anything else anybody needs on the record.'" (Italics added.) Jimenez's lawyer mentioned only custody credits, and a brief discussion ensued.
As in Gonzalez, the court provided defendants with a meaningful opportunity to object because the court invited defendants to place any objections on the record after it provided its reasons for its sentencing choices and pronounced sentence. (Gonzalez, supra, 31 Cal.4th at pp. 752, 755.) Moreover, even if defendants did not forfeit their claims of sentencing error, we conclude their arguments lack merit. B. Trial Court Did Not Err in Imposing the Upper Term for Kidnapping
Defendants contend the trial court abused its discretion in selecting the upper term for kidnapping. The probation officer's sentencing report found several aggravating circumstances applied to Sanchez, including the crime involved violence and the threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1)), Sanchez used a gun during the burglary (rule 4.421(a)(2)), he carried out the kidnapping with planning and sophistication (rule 4.421(a)(8)), Sanchez's violent conduct showed he posed a serious danger to society (rule 4.421(b)(1)), his prior convictions were numerous and increasingly serious (rule 4.421(b)(2)), and Sanchez was on informal probation when he committed the current crimes (rule 4.421(b)(4)). Sanchez used several aliases and had a criminal history dating to 2001, including Arizona convictions stemming from possession of a stolen vehicle and false impersonation, failure to appear, driving under the influence, and driving with a suspended license. The probation officer identified no mitigating circumstances as to Sanchez or the crimes.
Jimenez's sentencing report cited the same aggravating circumstances relating to the crime, but characterized Jimenez's prior record as "insignificant." Jimenez had suffered convictions for forgery (§ 470, subd. (d)) and burglary (§ 459) resulting from an attempt to cash a bogus check in February 2008. The sentencing reports reflected both defendants had active detainers with Immigrations and Customs Enforcement (ICE).
In sentencing defendants, the trial court remarked initially, "Well, the Court, while recognizing Defendant Jimenez does not have a substantial prior record, I cannot say the same about Defendant Sanchez. [¶] While I'm sure each has some redeeming social value, especially to the friends and family, who they don't commit crimes on or around, it's easy to see that just about everybody has a good side. And the people who see only the good side, unfortunately, don't see that the defendants, while illegally in the country, both of them, apparently, went on quite a crime spree, and brought in other people in the crime spree, and wanted to do a whole lot of bad things to people when they wanted to get out of the crime spree. It's difficult to see that the Court should do anything for them. [¶] It's always interesting, I suppose, when somebody commits crimes like this that are so serious, so dangerous, so violent against other people without a pattern having been built-up. To step up to this kind of crime at any point, leads the Court to believe there are a lot of reasons why they are not deserving of any mercy from the Court."
The trial court stated Sanchez was statutorily ineligible and unsuitable for probation, and "there is, basically, no reason why any of these sentences are required to be concurrent with each other." The court stated it intended to impose the 10-year mandatory enhancing allegation for firearm use and to stay the conviction for assault with a deadly weapon under section 654. The court observed there were "numerous factors in aggravation [of the kidnapping conviction], as noted in the probation report," citing violence and the threat of great bodily harm, the crime was carried out with planning and sophistication, Sanchez's violent conduct showed he posed a serious danger to society, his prior convictions, and his status as a probationer. The court imposed a consecutive one-third midterm on the burglary count. The court cited the same aggravating circumstances in sentencing Jimenez, noting they outweighed the mitigating factor of an insignificant criminal record, explaining that his prior convictions were "related to the crime spree here . . . a large scale criminal plan to pass fake checks . . . ."
Section 1170 provides: "(a)(3) . . . In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. . . . [¶] (b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to Section 1203.03, and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. . . . [¶] (c) The court shall state the reasons for its sentence choice on the record at the time of sentencing." (Italics added.)
California Rules of Court, rule 4.420(b) reads: "In exercising his or her discretion in selecting one of the three authorized prison terms . . . the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." The rules provide "reasons for selecting one of the three authorized prison terms . . . be stated orally on the record" in simple language. (Rules 4.420(e) & 4.406(a).) The trial court's selection of the appropriate term is reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Judicial discretion "'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' [Citation.] [D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) The burden is on the party attacking the sentence to clearly show the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (Ibid.)
Jimenez complains the trial court relied on the facts he "entered the residence while [Sanchez] was armed, and the kidnap victim was taken to Mexico, beaten, and told his siblings would suffer the same fate" to demonstrate both the crime involved great violence or threat of bodily harm (Cal. Rules of Court, rule 4.421(a)(1)) and to support a finding defendants were a serious danger to society (rule 4.421(b)(1)). He argues these facts are not "supported by the evidence," and therefore "could be at most only one factor in aggravation." He also complains that "violence [and] threat of great bodily harm is the same fact supporting the arming enhancement . . . ."
Per California Rules of Court, rule 4.421, "Circumstances in aggravation include factors relating to the crime and factors relating to the defendant." Among "[f]actors relating to the crime" is whether "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness . . . ." (Rule 4.421(a)(1).) Among the factors relating to the defendant, is whether "defendant has engaged in violent conduct that indicates a serious danger to society . . . ." (Rule 4.421(b)(1).)
The factor focusing on whether a crime involved great violence or a threat of bodily harm is not identical to the factor that examines whether a defendant poses a serious danger to society. These sentencing factors are separate and distinct: one deals with the nature of the crime, the other with the nature of the defendant. Thus, a trial court may conclude, based on a defendant's personal mitigating characteristics, that a particular defendant who committed a violent offense does not pose a serious risk of reoffending. But that is not what occurred here. The evidence reflected Sanchez and Jimenez were integral components, middle management and "muscle," in a sophisticated organized crime ring or "mafia" to cash bogus checks throughout the United States. The organization used violence and threats to keep its foot soldiers in line. Juan Carlos testified Jimenez shadowed him during interstate forays to ensure he performed as directed. According to Enrique, during the kidnapping incident, Jimenez grabbed him from behind and pushed him against a wall, where Sanchez pistol-whipped him. Sanchez threatened he would leave Enrique "'laying on the floor'" if he did not stay put. Jimenez then forcefully led Armando away. The sentencing report reflects after the kidnapping, Armando was taken to Mexico and beaten, and warned the same fate would befall others who ran afoul of the organization. The evidence amply justifies the trial court's reliance on these aggravating circumstances, and we disagree defendants did not "engage[] in violent conduct beyond that necessary to accomplish the [kidnapping] offense[.]" (See People v. Garcia (1995) 32 Cal.App.4th 1756, 1776.) But even if these aggravating factors overlapped to some extent with each other, and with the firearm use/arming enhancements, the trial court was not required to find multiple aggravating circumstances to impose an upper-term sentence (People v. King (2010) 183 Cal.App.4th 1281,1323-1324), and the record supports other aggravating circumstances the trial court cited. Contrary to defendants' arguments, planning and sophistication is not inherent in the crime of kidnapping, and the evidence demonstrated the offenses were planned and coordinated with the ultimate goal to force the victims to continue working in the illegal check cashing scheme. Sanchez was on probation at the time of the current crimes, and both defendants' criminal behavior, while not previously serious, had become increasingly so. We discern no abuse of discretion in imposition of the upper term for kidnapping. C. Undocumented Alien Status and Uncharged Crimes
Jimenez does not deny he "was responsible for taking Armando from his home against his will[,]" but argues violence against Armando should not be imputed to him because the evidence conclusively established he could not have taken Armando to Mexico. As noted above, Jimenez personally acted violently against Enrique. And as a principal in the kidnapping, he can hardly disclaim responsibility for violence that befell Armando.
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Defendants contend the trial court improperly considered their undocumented status in determining the appropriate punishment for the crimes. As noted above, in its initial sentencing remarks, the court stated, "While I'm sure each has some redeeming social value, especially to the friends and family, who they don't commit crimes on or around, it's easy to see that just about everybody has a good side. And the people who see only the good side, unfortunately, don't see that the defendants, while illegally in the country, both of them, apparently, went on quite a crime spree, and brought in other people in the crime spree, and wanted to do a whole lot of bad things to people when they wanted to get out of the crime spree." (Italics added.) Jimenez asserts "alienage is irrelevant to the determination of punishment for the criminal offenses." Sanchez adds the sentencing report reflects his parents brought him to the United States in 1983, when he was approximately four years old, and the "use [of] this as a reason to impose a more harsh sentence is simply unacceptable."
In People v. Johnson (1988) 205 Cal.App.3d 755, the trial court denied probation and sentenced the defendant to the midterm for possessing drugs for sale, stating, "So I'm going to sentence you — and incidentally, you are here as a privilege, being a citizen of another country. And yet, you abused that privilege, and seriously abused it. So it will be the judgment and order of this Court, and like I say, the only mitigating circumstances is your lack of prior conviction, but there are the aggravating circumstances which certainly outweigh the mitigating circumstances just by the very nature of the crime. The fact that you are a heavy dealer. You were spreading cocaine throughout the Palm Springs area. And you abused the privilege of this country." (Id. at p. 757.) The appellate court reversed, agreeing with the defendant's claim "alienage is not a proper factor when considering the length of his term, although it may well be when deciding upon probation, particularly if it indicates his ties to the community are tenuous." (Id. at p. 758.)
Here, the trial court's brief mention of defendants' immigration status came during its prefatory remarks. The court did not purport to rely on immigration status as an aggravating circumstance. We conclude defendants' immigration status did not factor in the court's selection of the upper term or its decision to impose consecutive sentences.
Defendants also register a complaint concerning the court's reference to a "crime spree." As noted above, the court referred to defendants' role in the check fraud scheme in its prefatory sentencing remarks, and again when addressing Jimenez's sentence, noting Jimenez's prior criminal conduct was "related to the crime spree here . . . basically, a large scale criminal plan to pass fake checks . . . ." Defendants' participation in organized crime and an interstate check cashing scam, evidence that established a motive for Armando's kidnapping, was relevant to defendants' character and prospects for rehabilitation, and the court properly considered it in selection of the appropriate term of imprisonment. (See United States v. Grayson (1978) 438 U.S. 41, 49 [judge does not act unconstitutionally in considering either the defendant's criminal conduct for which he has not been convicted or the probation investigator's information reflecting the defendant is a "'menace to society'" as this is relevant to the defendant's character and prospects].)
Sanchez's reliance on Apprendi v. New Jersey (2000) 530 U.S. 466, is misplaced. The Apprendi line of cases establishes a defendant's right to have a jury determine facts (other than prior convictions) used to impose terms exceeding the statutory maximum for an offense. (See Cunningham v. California (2007) 549 U.S. 270.) Here, the prescribed statutory maximum for kidnapping was the upper term of eight years in prison. (See People v. Sandoval, supra, 41 Cal.4th at p. 844.) D. Consecutive Term for Burglary
Defendants contend the trial court erred by imposing a consecutive term for burglary. Jimenez asserts the court could not rely on the "fact [he] was vicariously armed in the commission of the burglary" because "the court already imposed the principal armed enhancement to the term for kidnapping[,]" and "the facts conclusively established that the burglary was committed for the purpose of kidnapping an occupant."
Section 669 provides, "When any person is convicted of two or more crimes, . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively."
California Rules of Court, rule 4.425, lists criteria affecting the decision to impose consecutive rather than concurrent sentences, including "[f]acts relating to the crimes, including 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." Also, "[a]ny circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, 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); see also rule 4.406 [sentencing judge is required to state reasons for imposing consecutive sentences].)
Here, as to concurrent or consecutive terms, the trial court initially stated "there is, basically, no reason why any of these sentences are required to be concurrent with each other . . . ." The court sentenced Sanchez for burglary, stating, "For Count 3, the burglary charge, the Court imposes a third midterm . . . ." In sentencing Jimenez, the court stated, "And as to Count 3, again, he was vicariously armed with the firearm, when he entered the apartment, even though there is no allegation or enhancing count or allegation, which would add a sentence for that." The court then mentioned the kidnapping had been carried out with planning and sophistication, cited Jimenez's violent conduct, and noted his prior record, "though insignificant, does involve conduct related to the crime spree here . . . ." The court then stated "for Count 3, he should serve a third of the midterm consecutive."
The Attorney General concedes the trial court "did not specify the specific factor it was relying upon to impose consecutive terms" but asserts the court "stated that there were a lot of reasons why [defendants] were not entitled to any mercy" and would not be given concurrent sentences, and set forth "all of the factors in aggravation which applied in this case[.]" Even if the court relied on the same fact to impose the firearm enhancements and consecutive terms, the Attorney General argues "it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the alleged error" because the court found multiple factors in aggravation and would "undoubtedly . . . have imposed consecutive terms . . . ."
We agree any error was harmless. The trial court cited numerous aggravating circumstances that justified imposition of consecutive sentences. As noted in the probation report, the crime involved violence and the threat of great bodily harm, defendants used/were armed with a gun, the crime involved planning and sophistication, the violent conduct showed both men posed a serious danger to society, both defendants had criminal records, and Sanchez was on probation when he committed the current crimes. While some of these circumstances were used to justify the aggravated term and enhancements, others were available to impose a consecutive term for burglary. As the court noted, the crimes were "so serious, so dangerous, so violent[,]" and defendants were not "deserving of any mercy from the Court." We discern no prejudicial error arising from the court's failure to articulate a basis for imposition of consecutive terms for burglary. (People v. Coleman (1989) 48 Cal.3d 112, 166.)
III
DISPOSITION
The judgment is affirmed.
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ARONSON, J.
WE CONCUR:
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RYLAARSDAM, ACTING P. J.
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IKOLA, J.