Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA701383, Dwight W. Moore, Judge.
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury found defendant and appellant Hugo Jose Lua guilty of two counts of carjacking. (Pen. Code, § 215, subd. (a), counts 1 & 2.) The trial court found true the allegations that he had one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), that he served two prior prison terms (§ 667.5, subd. (b)), and that, as to counts 1 and 2, he had a prior serious felony conviction (§ 667, subd. (a)(1)). The trial court sentenced defendant to a total term in state prison of 28 years 4 months, including the upper term of 18 years on count 1, three years four months on count 2, five years on the prior serious felony conviction, and one year on each of the two prison priors, all to run consecutive to the sentence imposed on count 2.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends that: 1) the trial court improperly ran the sentences consecutively since it relied on a fact not in evidence in doing so, and it improperly relied on a fact that was also an element of the offense; and 2) his Sixth Amendment right to a jury trial, as defined in Blakely v. Washington (2004) 542 U.S. 296, was violated when the trial court imposed consecutive sentences. We disagree and affirm.
FACTUAL BACKGROUND
Close to midnight on August 17, 2007, Maria Gonzalez was in her black Ford Taurus, waiting in a Burger King parking lot to pick up her brother. Her mother, Rosario Gonzales, was with her, sitting in the backseat of the car. At some point, Maria saw two men, one of whom was defendant, approaching her car. Rosario said, “Here come those two guys.” Maria started to roll up her window, but defendant blocked it with his fingers and pulled it toward him until the window “popped” and could no longer roll up. Defendant yelled at Maria “[t]o get out of the [f------] car[.]” He opened the car door and continued to yell at her. She tried to put the car in reverse, but defendant grabbed her by the hair, told her he had a gun in his pants, and pulled her out of the car. Then defendant got into the driver’s seat of the car. Rosario was still in the backseat. Defendant yelled at Rosario, but she did not understand him because she did not speak English. She was afraid for her life. She opened the door and threw herself onto the grass. Maria saw defendant drive her car out of the Burger King parking lot. The police spotted the Taurus quickly pull out of the parking lot and then make an abrupt U-turn against the red light. The police followed the car and eventually apprehended defendant after he crashed the car into a tree.
Because Maria and her mother have the same last name, we will refer to them by their first names in order to avoid confusion.
ANALYSIS
I. The Trial Court Properly Imposed Consecutive Sentences
Defendant contends the trial court improperly sentenced him consecutively because 1) its decision was based on a fact not in evidence at trial, and 2) the court improperly relied on a fact that was also an element of the offense. At the outset, we note the People’s argument that defendant waived any claims to sentencing errors since he failed to object at the time of sentencing. Assuming, without deciding, that defendant did not waive his claims, we conclude the trial court properly sentenced defendant.
A. There Was Sufficient Evidence to Support the Imposition of a Consecutive Term on Count 2
California Rules of Court, rule 4.425 (rule 4.425) sets forth the criteria affecting the decision to impose consecutive, rather than concurrent, sentences. The criteria include the factor that “[t]he crimes involved separate acts of violence or threats of violence.” (Rule 4.425(a)(1).)
Here, the court stated that count 2 was for the carjacking of Rosario, who was a separate victim from Maria (the victim in count 1). The court said it chose to run the sentence in count 2 consecutively “because there were separate threats of violence to the second victim, the mother. The defendant yelled at her repeatedly to get out of the car.” Defendant claims there was no evidence that the words he yelled at Rosario were “threats of violence” against her. He asserts that the evidence consisted of the prosecutor’s question to her about whether defendant had said anything to her, and her response that she did not understand him because she did not speak English. Rosario then responded affirmatively when the prosecutor asked whether defendant was yelling or screaming. Defendant cites to no authority that the victim had to understand the actual words of the threat in order to know she was being threatened. Moreover, defendant ignores the full context of the yelling. Rosario was in the backseat of the car and witnessed defendant yell at Maria to get out of the car, say that he had a gun, and pull Maria out of the car by her hair. Rosario testified that she feared for her life and her daughter’s life, and that defendant yelled at her, as well. She then pushed the door open and “threw” herself out of the car. Given the context of defendant yelling at Rosario and the obvious threat he posed, it is reasonable to conclude that she understood the “threat of violence” aimed at her, in view of her response. In other words, Rosario did not need to speak English to understand defendant was threatening her. Thus, the evidence supports the court’s finding that there were separate threats of violence toward Rosario, and accordingly, its imposition of a consecutive term.
B. The Court Did Not Rely on a Dual Use of Facts
Defendant next contends that the court’s reliance on the fact that defendant yelled at Rosario in imposing consecutive terms constituted an impermissible dual use of facts, since this fact also served as a basis for establishing the force or fear element of the carjacking in count 2. Defendant also alludes to the claim that there were no other aggravating factors in support of consecutive sentences, except those already used by the court to support the imposition of the upper term. We find no error.
Rule 4.425, subdivision (b)(3), provides that “[a] fact that is an element of the crime may not be used to impose consecutive sentences.” In order to show that defendant was guilty of carjacking, the People had to prove that: 1) he “took a motor vehicle that was not his own”; 2) the vehicle “was taken from the immediate presence of a person who possessed the vehicle or was its passenger”; 3) the vehicle “was taken against that person’s will”; 4) defendant “used force or fear to take the vehicle or to prevent that person from resisting”; and 5) defendant “intended to deprive the other person of possession . . . either temporarily or permanently.”
The element at issue is that defendant “used force or fear to take the vehicle or to prevent that person from resisting.” However, contrary to defendant’s claim, the court did not use this element to impose consecutive sentences. Rather, the court imposed a consecutive sentence on count 2 “because there were separate threats of violence to the second victim[.]” (Italics added.) As stated by the court before ordering consecutive sentencing, Rosario “was a separate victim,” and “it [was] a separate crime.” The court properly sentenced defendant in this regard. (See People v. Calderon (1993) 20 Cal.App.4th 82, 85, 87.)
Moreover, we note that defendant’s verbal threats aimed at Rosario were one of the many facts that supported the force or fear element of the carjacking. The record showed that, as defendant approached the car, Maria started to roll up her window. Defendant blocked it with his fingers and pulled the window toward him until it “popped” and could not roll up any more. He yelled at Maria “[t]o get out of the [f------] car[.]” Defendant opened the car door and continued to yell at Maria, told her he had a gun in his pants, and pulled her out of the car by her hair. Defendant got into the driver’s seat while Rosario was still in the backseat. He yelled at her too, until she threw herself out of the car to escape. As the evidence demonstrated, defendant used force or fear to facilitate the carjacking from the time he approached the car until the time he drove off with it, not just when he yelled at Rosario.
In any event, even if the court did err in relying on the fact that defendant yelled at Rosario in support of its decision to impose consecutive sentencing, the error was harmless. The criteria set forth in rule 4.425 are not exclusive. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1060.) The “naming of separate victims in separate counts is a circumstance on which a trial court may properly rely to impose consecutive sentences.” (Id. at p. 1061.) Here, Maria was the victim named in count 1, and Rosario was the victim named in count 2, as noted by the trial court. Thus, the court could have relied upon such circumstance to impose consecutive sentences.
In addition, we note that defendant states “[t]here were no aggravating factors in support of consecutive sentences except those already used by the court to support imposition of the upper term” (capitalization & bolding omitted); however, he fails to actually assert an argument in support of this claim. Nonetheless, we address the claim and find it meritless.
As stated above, the court’s decision to sentence defendant consecutively was based on the factor that the crimes involved separate acts or threats of violence. However, in sentencing defendant to the upper term on count 1, the court cited the reasons as: 1) the crime involved the threat of bodily harm in that he at least simulated a weapon or threatened that he had one, and he grabbed the victim physically in count 1 and threw her to the ground; 2) defendant had a long history of violent conduct; 3) his prior convictions as an adult were numerous and clearly increasing in seriousness; 4) he was on parole when the crime was committed; and 5) his prior performance on parole was obviously unsatisfactory. There was no impermissible dual use of facts.
II. The Trial Court Properly Imposed Consecutive Sentences
Defendant claims that the trial court’s imposition of the sentence in count 2 consecutively to the sentence in count 1, based on a fact that was not found true beyond a reasonable doubt by the jury, violated his constitutional rights to a jury trial and due process under Blakely v. Washington, supra, 542 U.S. 296. We disagree.
In People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that Cunningham v. California (2007) 549 U.S. 270, was inapplicable to consecutive sentencing in California. (People v. Black, supra, at p. 823.) The court explained: “The high court’s decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (Ibid.)
In adhering to the above holding in Black, as we must (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we reject as untenable defendant’s position to the contrary that imposition of consecutive sentences in this matter violated his right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MCKINSTER, J.