Opinion
E051685
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. GREGORY GLEN GUTIERREZ, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Christopher Beesley and Randall D. Einhorn, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF058476)
OPINION
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Christopher Beesley and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Gregory Glen Gutierrez guilty of one count of attempted premeditated murder (Pen. Code, §§ 664/187, subd. (a); count 1); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4); one count of discharging a firearm at an occupied vehicle (§ 246; count 5); one count of making criminal threats (§ 422; count 6); and one count of being a felon in possession of a firearm (§ 12021, subd. (a)(1); count 7). The jury also found true that in the commission of count 1 defendant had discharged a firearm (§ 12022.53, subd. (d)) and inflicted great bodily injury (§ 12022.7, subd. (a)). The jury further found true that in the commission of counts 3 and 4 defendant had personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior prison term (§ 667.5, subd. (b)) and three prior serious and violent felony convictions (§§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1)).
All future statutory references are to the Penal Code unless otherwise stated.
The jury was unable to reach a verdict on count 2 (attempted premeditated murder of Sergio Vela). The court later dismissed that charge in the interest of justice.
As a result, defendant was sentenced to a determinate term of eight years, plus a consecutive indeterminate term of 125 years to life in state prison as follows: consecutive terms of 25 years to life on counts 1, 4, 6, and 7, plus a consecutive term of 25 years to life for the firearm enhancement attached to count 1, plus a consecutive term of one year for the prior prison term, plus a consecutive term of four years for the firearm enhancement attached to count 4, plus a consecutive term of three years for the great bodily injury enhancement attached to count 4; the terms of 25 years to life on counts 3 and 5 were imposed but stayed pursuant to section 654, as well as the attendant firearm and great bodily injury enhancements. On appeal, defendant contends (1) there was insufficient evidence to sustain the verdict on count 1 (attempted premeditated murder); and (2) the sentence must be vacated and the matter remanded because the trial court misunderstood its discretion to impose concurrent or consecutive terms on counts 4, 6, and 7. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND
Defendant, a convicted felon, and Lisa Gutierrez were married in April 2000 and had two children together. By May 2007, they had separated, and Lisa was living at her parents' home. During this time, defendant and Lisa argued about defendant's visitation with his children. Defendant had threatened Lisa during the arguments.
On May 12, 2007, Lisa received several angry phone calls from defendant beginning about 10:00 a.m. regarding seeing their daughter. Defendant used profanity and threatened to kill Lisa and her parents if Lisa continued to refuse to allow him to see his children. Lisa hung up on defendant. She explained that she did not want defendant to see her children because he was angry, and she believed that he was under the influence.
Defendant continued to call Lisa, but Lisa did not answer the phone. Around 4:30 p.m., Lisa received a call from defendant in which he threatened to take a cab to her house and shoot her and her parents if she did not drive their daughter to his house. Lisa was scared and subsequently went to the police station, where she was interviewed by Cathedral City Police Officer Enrique Sanchez around 7:00 p.m.
Officer Sanchez described Lisa as being "extremely terrified" and "nervous." She was also "shaking" and "visually distraught." During the interview, defendant called Lisa on her cell phone, and with Lisa's consent, Officer Sanchez answered the phone. Defendant said "something to the effect" of, "'Who the fuck are you? Who's answering my wife's phone?'" Officer Sanchez informed defendant of his identity and explained that he was conducting an investigation and wanted to hear defendant's side of the story. Defendant replied, "'Who are you[], you just some guy that's fucking my girlfriend[?]'" Officer Sanchez again informed defendant of his identity, and defendant stated, "'You're just a fucking joke. You don't want to hear my side of the story.'" As defendant sounded "extremely mad" and "short of breath," Officer Sanchez told defendant to "calm down" and "relax." Defendant repeated, "'You're just a fucking joke. You don't want to hear my side of the story.'" Defendant also said that it was none of Officer Sanchez's business and if Officer Sanchez wanted to talk to him he could come and get defendant on Date Palm. Defendant also exclaimed, "'I know you are going to get a bunch of your buddies and come here. You are just a fucking pussy.'" He further stated, "'You're not going to come alone,'" and "'You don't want none of this.'" Due to defendant's demeanor of being "extremely excited," "agitated," and "loud," then changing his demeanor to "just laughing," Officer Sanchez believed that defendant might have been under the influence.
After speaking with defendant, Officer Sanchez resumed his interview with Lisa. However, the interview was interrupted by a dispatch report of a shooting at a Food 4 Less shopping center on Date Palm. Officer Sanchez left to respond to the shooting call.
Video surveillance at the shopping center showed defendant approaching private security guards Joe DeLeon and Sergio Vela. At the time, DeLeon was seated in a marked security vehicle and was talking to Vela, who was standing near the driver's side door. Defendant stated something to the effect of "'[t]he fuckers'" or "'You motherfuckers, fuck you motherfuckers,'" and then began shooting at DeLeon and Vela. Vela was hit by one bullet, but had entry wounds in both legs. He tried to get up and run away but fell to the ground.
Defendant shot at the security vehicle as well. DeLeon pressed the gas pedal of the vehicle; the car made a wide U-turn and crashed into a tree. DeLeon then got out of the car, went down to his knees, and returned fire with his gun. Defendant continued to advance at the vehicle, and the two exchanged fire. Defendant then ran off. DeLeon was shot in his left side beneath his rib cage.
Police later found four 7.62-caliber shell casings and two live rounds at the scene. Police also observed numerous bullet holes in DeLeon's vehicle. An expended bullet was also located inside the front panel of DeLeon's body armor.
After suspecting that the shooting was related to defendant's telephone calls, Officer Sanchez contacted Lisa again at the police station. Lisa informed the officer that defendant had left several threatening voicemail messages on her phone. In his ranting, profanity-strewn messages, defendant again threatened to kill Lisa and her parents; called them derogatory names; and told her to call the police or anyone else, as he was waiting on Date Palm. Specifically, defendant told Lisa to have the police and anyone else she wanted come to his location, explaining he was "posted up like a mother fucker," and the police or others "better come suped up like a mother fucker 'cause I'm ready to be put on the news now . . . . [T]here is a 187 [murder] of mine right here," "this shit's going down today."
Defendant was subsequently arrested and interviewed after being advised of and waiving his constitutional rights. Defendant claimed that he was angry at his wife because she would not allow him to see their children and acknowledged that he had threatened to hurt her many times. He was also angry that his wife had involved the police and had a lot of anger toward security guards, who, in defendant's view were "'just pretending to be cops.'" He acknowledged shooting at DeLeon and Vela. He initially claimed that he was not aiming at the security guards, but then stated, "'Well, I was aiming, but you know, had already had enough of it.'" He further explained that after the shooting he left the scene, buried the gun in a laundry shed, and changed his clothing. A semiautomatic 7.62 gun, along with ammunition and defendant's clothing, were recovered from the laundry facility.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support his conviction of attempted premeditated murder of DeLeon, as there was no evidence of the attempted murder was committed with premeditation and deliberation.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence — that is, evidence that is reasonable, credible, and of solid value — supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
"Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (Young, at p. 1181.)
An unlawful "willful, deliberate, and premeditated [attempted] killing" is attempted murder in the first degree. (§ 189.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
The test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented. (People v. Perez (1992) 2 Cal.4th 1117, 1124; People v. Anderson (1968) 70 Cal.2d 15, 25.) The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation are: (1) prior planning activity, (2) motive, and (3) the manner of killing shows a preconceived design to take the victim's life. (Perez, at p. 1125; Anderson, at pp. 26-27.) "'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]'" (People v. Koontz, supra, 27 Cal.4th at p. 1080; see also People v. Young, supra, 34 Cal.4th at p. 1182.)
Such evidence need not be present in some special combination or be accorded a particular weight, nor is the list exhaustive. (People v. Pride (1992) 3 Cal.4th 195, 247; People v. Perez, supra, 2 Cal.4th at p. 1125.) Rather, they serve as an aid to assess whether the killing or attempted killing was the result of preexisting reflection. (Perez, at p. 1125.)
Here, there was evidence that defendant had a motive to kill DeLeon. Defendant angrily explained that he disliked security guards; he was angry at his wife; he was angry at the police; and he essentially wanted the police or others to come to his location so that he could engage in a murder. In addition, after firing at DeLeon and Vela, defendant continued to advance at DeLeon and exchange fire with him. Defendant fired multiple shots and had the opportunity to stop and reflect on his actions before he pulled the trigger each time. Premeditation and deliberation does not require any extended period of time; "'"[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' [Citation.]" (People v. Koontz, supra, 27 Cal.4th at p. 1080.) Defendant admitted that he was aiming at the security guards. DeLeon was hit on his left side beneath his rib cage. Clearly, the manner of attempted killing showed deliberation. (People v. Perez, supra, 2 Cal.4th at p. 1125.) Moreover, defendant had brought a loaded gun to the area, along with ammunition, showing evidence of planning. Defendant also said that he was "posted up," "ready to be put on the news now . . . . [T]here is a 187 of mine right here," and "this shit's going down today." Defendant was essentially ready and waiting to kill someone. Substantial evidence showed that the attempted killing was the result of a careful weighing of considerations and was thought of in advance. Deliberate and premeditated murder arises out of a cold, calculated judgment, rather than a rash impulse. (People v. Cole (2004) 33 Cal.4th 1158, 1224.) Contrary to defendant's claim, defendant did not act impulsively.
We find that substantial evidence supported the jury's finding that the attempted murder of DeLeon was committed with premeditation and deliberation.
B. Sentencing on Counts 4, 6, & 7
Defendant next contends that his sentence must be vacated because the trial court misunderstood its discretion to impose concurrent or consecutive terms for count 4 (assaulting Vela with a firearm), count 6 (criminal threats against Lisa), and count 7 (felon in possession of a firearm). The People respond that defendant waived this issue on appeal or, in the alternative, argue that defendant's contention is unmeritorious. To forestall defendant's ineffective assistance of counsel claim, we will address his claim on the merits.
In his reply brief, defendant claims that his counsel's failure to object amounted to prejudicial ineffective assistance of counsel.
When a defendant is sentenced on multiple felony counts under the three strikes law because he or she has previously been convicted of one or more serious or violent felony offenses, the trial court must impose consecutive sentences for all the current convictions unless the current offenses were committed on the same occasion or arise from the same set of operative facts. (§§ 667, subds.(c)(6), (7), 1170.12, subds. (a)(6), (7).) The trial court retains discretion to impose either concurrent or consecutive sentences for crimes committed on the same occasion or arising from the same set of operative facts, even though they involved different victims. (§§ 667, subds. (c)(6), (7), 1170.12, subds. (a)(6), (7); see also People v. Deloza (1998) 18 Cal.4th 585, 591, 595 [the defendant's simultaneous robberies of different victims did not compel consecutive sentences under three strikes law]; People v. Lawrence (2000) 24 Cal.4th 219, 226-228, 233.)
The Supreme Court has held that, when deciding whether to impose consecutive or concurrent sentences in a three strikes case involving multiple offenses occurring on the same occasion, the trial court should be guided by the criteria set forth in former rule 425 (renumbered rule 4.425) of the California Rules of Court and consider, among other matters, whether the crimes were predominately independent of each other, whether they involved separate acts of violence or threats of violence, whether they were committed at different times or separate places, and whether any factors in aggravation existed to warrant a consecutive sentence. (People v. Deloza, supra, 18 Cal.4th at p. 596, fn. 8; see also Cal. Rules of Court, rule 4.425.) When the record affirmatively shows the trial court misunderstood the scope of its discretion to impose concurrent sentences in a three strikes case, remand for resentencing is required. (Deloza, at p. 600.)
Defendant argues that counts 4, 6, and 7 occurred on the same occasion or arose from the same set of operative facts; therefore, the trial court had discretion to order those terms run concurrently with the other terms. Defendant argues the trial court did not recognize it had this discretion and mistakenly believed consecutive sentences were mandated by the three strikes law, as evidenced by the court's statement, "There aren't many options in this case. Because you are a third-striker, [defendant], the legislature has mandated sentences. [¶] . . . [¶] And yours comes out to be pretty long, as you just heard."
Contrary to defendant's contention, nothing in the record suggests the trial court misunderstood the scope of its discretion to impose concurrent sentences. When read in context and in conjunction with the court's articulated desire to impose consecutive terms, the statement that "there aren't many options" or "the legislature has mandated sentences" was plainly reflective of the court's belief that defendant's current serious felony offenses, involving different victims and some occurring at different times, were worthy of consecutive sentences, not that consecutive sentences were mandatory. (Cf. People v. Deloza, supra, 18 Cal.4th at p. 600 [where trial court stated on the record that it was imposing a "'crushing sentence'" but that it was "'unlawful for [the court] to proceed in any other fashion,'" remand was necessary because record showed court misunderstood scope of its discretion (italics omitted)].)
The trial court's reliance on the factors set forth in Deloza and in California Rules of Court, rule 4.425 in imposing consecutive sentences further demonstrates awareness of its discretion. In explaining its reasons for imposing consecutive sentences for counts 4, 6, and 7, the court observed that the counts involved separate victims and separate times. Specifically, in regard to count 6 (criminally threatening Lisa), the court noted that it occurred at "a different time, a different victim, a different place." In regard to count 7 (felon in possession of a firearm), the court explained that it "was a continuous possession of the firearm. He had it well before any of these crimes and after these crimes, well after the crimes." As to count 4 (assault on Vela with a firearm), the court noted that offense involved a different victim and involved great bodily injury. Had the trial court believed consecutive sentences under the three strikes law were mandatory, it would have been unnecessary to justify imposition of consecutive sentences by reference to some of the criteria set forth in Deloza and California Rules of Court, rule 4.425.
"'The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]'" (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517.) "We must indulge in every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error it will not be presumed. [Citation.]'" (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Thus, there is a "normal presumption of regularity concerning the exercise of sentencing discretion." (People v. Mosley (1997) 53 Cal.App.4th 489, 497.) As previously noted, an appellate court will not conclude the trial court misunderstood the scope of its sentencing discretion "in the absence of some affirmative showing that it misunderstood its discretion." (People v. Alvarez (1996) 49 Cal.App.4th 679, 695.)
Defendant has not affirmatively demonstrated the trial court misunderstood its sentencing discretion. He focuses on one statement the court made before imposing sentencing. Without evidence to the contrary, we must presume the trial court was aware of and properly exercised its discretion to impose concurrent or consecutive prison terms for the challenged offenses. To presume otherwise "would require us to engage in pure speculation, and violate a basic tenet of appellate review." (People v. Alvarez, supra, 49 Cal.App.4th at p. 695.)
In any event, it is clear that neither count 6 nor 7 arose from the same set of operative facts or on the same occasion as the attempted murder of DeLeon. When there is close "temporal and spatial proximity between the acts underlying the current convictions," they are committed on the same occasion for purposes of qualifying for concurrent sentencing under the three strikes law. (People v. Deloza, supra, 18 Cal.4th at p. 595.) In Deloza, the defendant and an armed companion entered a furniture store. (Id. at p. 589.) The gunman pointed the weapon at a salesperson and asked where the money was. The salesperson directed the defendant to an assistant manager, who opened a cash register. After taking money from the register, the defendant demanded and received a wallet from another salesperson. The defendant then demanded a purse from a customer, yanked it from her shoulder, and fled with the gunman. He was convicted on four counts of robbery and sentenced under the three strikes law to four consecutive terms of 25 years to life. (Id. at p. 589.) The Supreme Court held that, "[g]iven the close temporal and spatial proximity of defendant's crimes against the same group of victims, they were clearly committed on the 'same occasion[]'. . . ." (Id. at p. 596.) "[T]he trial court therefore retained discretion to impose either concurrent or consecutive sentences." (Ibid, fn. omitted.)
In this case, the record is clear that count 6 (criminally threatening Lisa) and count 7 (felon in possession of a firearm) did not occur on the same occasion or arise from the same set of operative facts. In other words, these offenses were not close in "temporal and spatial proximity." Defendant had already criminally threatened Lisa about 4:30 p.m., several hours before he had attempted to kill DeLeon and assaulted Vela with a firearm. Further, there is evidence indicating that defendant had already completed the crime of possession of a firearm by a felon prior to his shooting spree. The possession of the firearm was not simultaneous to his attempting to kill DeLeon. Contrary to defendant's contention, counts 6 and 7 did not occur on the same occasion or during the same set of operative fact, as they were not committed in "'a close temporal and spatial proximity between the acts underlying [count 1]'" (People v. Coelho (2001) 89 Cal.App.4th 861, 864, fn. 1) and involved a separate cast of characters. All of these offenses were not committed on the same occasion or during the same set of operative facts in that they were separated both in time and distance from the earlier set of offenses and from each other.
In Lawrence the defendant committed a theft in a market, assaulted an individual, and then assaulted two others in their backyard. The second assault apparently occurred within five minutes of the theft, as the defendant was attempting to flee. (Lawrence, supra, 24 Cal.4th at. pp. 223-225.) The Supreme Court found the defendant's offenses did not occur on the same occasion, because they were not in close temporal and spatial proximity. (Id. at pp. 226-229.) The offenses also did not occur from the same set of operative facts. (Id. at pp. 230-234.) The court stated that there were "additional factors not present in Deloza and Hendrix: two separate locations (a market and a residence one to three blocks away), and two entirely separate groups of victims (the employees and a patron of the market, and Rojas and LaVastida, who had no connection to the first crime)." (Id. at p. 228.)
With regard to section 667's other consecutive sentencing factor, "arising out of the same operative facts," Lawrence approvingly cited the analysis in People v. Durant (1999) 68 Cal.App.4th 1393, a case holding that three strikes consecutive sentencing was mandatory where the defendant had committed a burglary and two attempted burglaries by walking around a condominium complex and committing three crimes at three different houses. Lawrence explained: "Durant suggests that the nature and elements of the current charged offenses -- for example, the extent to which common acts and elements of such offenses unfold together or overlap, and the extent to which the elements of one offense have been satisfied, rendering that offense completed in the eyes of the law before the commission of further criminal acts constituting additional and separately chargeable crimes -- are additional factors the court must consider in determining whether multiple current crimes arose from the 'same set of operative facts' when the offenses are committed more than seconds apart. [Citation.] There may be others." (Lawrence, supra, 24 Cal.4th at p. 233.)
Lawrence continued: "Returning to the facts of this case, we cannot agree with the Court of Appeal majority that defendant's current offenses '[arose] from the same set of operative facts.' Defendant's initial crime was the shoplifting theft of a bottle of brandy from a market. Although still in flight from the crime scene, he thereafter chose to commit new and different offenses: the trespass into the [residential] backyard, and the ensuing assaults against [the homeowners]. The first crime involved an act of theft directed at one group of victims, the second involved assaultive conduct directed at an unrelated pair of victims. The two criminal episodes were separated spacially by at least one to three city blocks, and temporally by two to three or more minutes. . . . [¶] On these facts we conclude that defendant's felony assault upon [one of the homeowners] did not arise out of the 'same set of operative facts' as the theft from the market. Because defendant's multiple current felony convictions neither were committed on the same occasion within the meaning of Deloza nor arose from the same set of operative facts, the trial court correctly concluded it was mandated by [section 667,] subdivision (c)(6) to sentence consecutively." (Lawrence, supra, 24 Cal.4th at pp. 233-234; see also People v. Jenkins (2001) 86 Cal.App.4th 699, 706-707 [consecutive three strikes sentencing mandatory where the defendant's assault of one victim was separated from attempted murder of second victim by the defendant going downstairs to first floor to search for weapon, then pushing away person who sought to intervene, before going back upstairs to attack second victim].)
However, the closer question is whether count 4 (assault on Vela) occurred during the same set of operative facts or during the same occasion as the attempted murder of DeLeon (count 1). As to counts 1 and 4, we believe the trial court had the discretion to impose concurrent sentences. In other words, it is arguable that count 4 arose from the same set of operative facts and on the same occasion as count 1. Nonetheless, it is not reasonably probable that defendant's sentence would be reduced on remand. "The vast majority of cases that apply an explicit harmless error standard for procedural error in the selection and statement of reasons for sentencing choices hold that an appellate court should not remand for resentencing unless 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.'" (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685.) The trial court here chose to sentence defendant to a consecutive term of count 4, essentially because it involved a different victim and great bodily injury. "It has long been the rule that acts of violence against different victims may be charged and punished separately even though they occur on the same occasion. Even when violent crimes against the same victim on one occasion have separate motives, . . . consecutive sentencing is proper. [Citation.]" (People v. Calderon (1993) 20 Cal.App.4th 82, 87, fn. omitted.)
Because it is apparent the trial court desired to impose a consecutive sentence on count 4, remand would be an idle act. (See, e.g., People v. Coelho, supra, 89 Cal.App.4th at pp. 889-890 [where it is "virtually certain" court would impose same sentence on remand, remand would be an idle act exalting form over substance]; People v. Williams (1996) 46 Cal.App.4th 1767, 1783 [remand for court to state reasons for imposing consecutive sentence not required where it is not reasonably probable court would impose a different sentence].)
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: RAMIREZ
P.J.
KING
J.