Opinion
E070566
01-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN MOLINA, Defendant and Appellant.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez and Eric A. Swenson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1504298) OPINION APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi, Judge. Affirmed. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Molina was tried on charges of attempted murder, assault with an assault weapon, and reckless evasion of a police officer, as well as enhancement allegations. A jury convicted him on some, but not all, of the alleged charges and enhancements, and the trial court sentenced him to 37 years in prison.
In this appeal, Molina contends his convictions must be reversed, arguing that (1) his trial counsel's concession of guilt on some of the charges and allegations was tantamount to a guilty plea, and constituted ineffective assistance of counsel since Molina did not waive his right to trial; (2) both the prosecutor and Molina's trial counsel misstated the reasonable doubt standard during closing argument; (3) his trial counsel provided ineffective assistance of counsel by failing to object to certain prior misconduct evidence admitted at trial, and failing to request that the jury be instructed with CALCRIM No. 375, regarding evidence of an uncharged offense; (4) the trial court should have ordered punishment for one of the assault charges stayed pursuant to Penal Code section 654; (5) the trial court abused its discretion by imposing consecutive sentences for the conviction offenses instead of running them concurrently; (6) the trial court misunderstood the scope of its discretion with respect to imposing punishment for the firearm enhancements; and (7) the trial court abused its discretion by declining to strike any of the firearm enhancements. Molina also contends that if any of the sentencing issues are deemed forfeited, his trial counsel rendered ineffective assistance of counsel by failing to object as needed to preserve the arguments, and he argues that the cumulative error doctrine applies.
Further undesignated statutory references are to the Penal Code.
We find no prejudicial error and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the morning of November 13, 2015, Molina walked into his father J.M.'s machine shop and asked him to return a watch that Molina had given him as a birthday present about two years before, and to repay $6,000 that Molina had loaned to him. According to J.M., Molina had never given him any money, and the watch was in an office desk drawer. Based on Molina's demeanor and behavior, J.M. believed Molina was "on drugs." J.M. told Molina that he was busy and "needed five minutes," and then they would talk. Molina left. Shortly thereafter, J.M. discovered that Molina had searched the office for the watch, leaving everything "in disorder."
Molina returned to J.M.'s shop that afternoon. J.M. and one of his employees were outside, standing in front of the shop's glass door. Molina drove his car into the driveway and lowered the front passenger window of his car. J.M. and his employee saw that Molina was holding a rifle, later identified as a semiautomatic assault rifle. The two men gave differing accounts of what exactly Molina did next (and J.M. gave differing accounts to the police and at trial). Both testified, however, that Molina brandished the weapon at them—first from inside the car, and then again after exiting the car and standing a short distance from them—fired a shot into the air, and demanded money from J.M. Molina then returned to his car and drove away, firing into the air once or twice more. J.M. went back inside to call the police.
Responding police officers quickly located Molina's car and chased it at high speed. The chase looped back toward J.M.'s shop; about 10 minutes after J.M. called the police, he and his employee, again standing in front of the shop, heard the sounds of a police helicopter and the sirens of multiple police cars approaching. J.M. warned his employee to take cover, and J.M. hid behind a pillar where Molina could not see him. The employee did not immediately take cover. But he dived inside the shop when he saw Molina raise the rifle toward him as he drove past the shop. A police officer who was pursuing Molina observed four to six muzzle flashes as Molina fired the rifle out the passenger window toward the shop. Three bullets struck the shop, one of which passed within about five feet of the employee. Molina continued driving, but surrendered to police a short time later.
At trial, Molina elected not to testify, and the defense rested without putting on evidence.
The jury found Molina guilty on one count of attempted murder (Pen. Code §§ 187, 664, subd. (a) (count 2, relating to J.M.'s employee)), two counts of assault with an assault weapon (Pen. Code § 245, subd. (a)(3) (counts 3-4)), and one count of reckless evasion of a peace officer (Veh. Code, § 2800.2, subd. (a) (count 5)). The jury also found true enhancement allegations that Molina had personally used a firearm in committing count 2 (Pen. Code § 12022.53, subd. (b)), personally and intentionally discharged a firearm in committing count 2 (Pen. Code § 12022.53, subd. (c)), and personally used an assault weapon in committing counts 2, 3, and 4 (Pen. Code § 12022.5, subd. (b)). The jury deadlocked on a second count of attempted murder (count 1, relating to J.M.) and the allegation that the attempted murder of J.M.'s employee was willful, premeditated, and deliberate; the trial court declared a mistrial on that count and that allegation.
The trial court sentenced Molina to a total of 37 years in prison, consisting of the following terms, run consecutively: seven years (the middle term) for count 2, plus 20 years for the section 12022.53, subdivision (c) enhancement of that count; two years eight months (one-third the midterm) for count 3, plus two years for the section 12022.5, subdivision (b) enhancement of that count; two years eight months (one-third the midterm) for count 4, plus two years for the section 12022.5, subdivision (b) enhancement of that count; and eight months (one-third the midterm) for count 5.
The trial court also imposed, but stayed, a term of six years for the section 12022.5, subdivision (b) enhancement of count 2, and a term of 10 years for the section 12022.53, subdivision (b) enhancement of count 2.
II. DISCUSSION
A. Concessions by Defense Counsel
During trial, defense counsel repeatedly conceded to the jury that Molina was guilty of the offenses charged as counts 3, 4, and 5, and that the firearm enhancement allegations were true. Here, Molina argues that counsel's concessions are "tantamount to a guilty plea on those charges and allegations," and that "[t]he absence of Molina's waiver of his right to trial on those charges and allegations requires reversal." He also contends that he had a viable defense to the assault with an assault weapon charges and personal use of an assault weapon enhancements—based on lack of evidence that he knew his weapon was an assault weapon—so his trial counsel's failure to contest those charges on that ground amounted to ineffective assistance of counsel. We reject these arguments.
In People v. Cain (1995) 10 Cal.4th 1, overruled on other grounds by People v. Moon (2005) 37 Cal.4th 1, 37, our Supreme Court reaffirmed previous cases holding that "trial counsel's decision not to contest, and even expressly to concede, guilt on one or more charges . . . is not tantamount to a guilty plea requiring a Boykin-Tahl waiver." (People v. Cain, supra, at p. 30.) The court explained that it "is not the trial court's duty to inquire whether the defendant agrees with his counsel's decision to make a concession, at least where, as here, there is no explicit indication the defendant disagrees with his attorney's tactical approach to presenting the defense." (Ibid.) This holding is fatal to Molina's claim of error.
"Boykin/Tahl waiver" refers to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
We disagree with Molina's argument that McCoy v. Louisiana (2018) 584 U.S. ___, and People v. Farwell (2018) 5 Cal.5th 295 "inform the analysis here." Both McCoy and Farwell are distinguishable on their facts. In McCoy, the defendant had expressly objected to defense counsel's concession of the defendant's guilt. (McCoy v. Louisiana, supra, at pp. 1509-1511.) Here, there is no indication that Molina objected to defense counsel's tactical decision not to contest some of the charges. Farwell involved a factual stipulation that admitted all elements of the crimes, which the trial court read into the record. (People v. Farwell, supra, 5 Cal.5th at p. 307.) The trial court then informed the jury of the stipulation's "conclusive evidentiary effect." (Ibid.) Here, in contrast, the jury was instructed that it was the prosecution's burden to prove guilt on all counts beyond a reasonable doubt, and that "[n]othing that the attorneys say is evidence." As our colleagues in the Second District Court of Appeal recently held, in such circumstances, it is Cain, and not McCoy or Farwell, that is the controlling authority. (People v. Lopez (2019) 31 Cal.App.5th 55, 63-67.)
In briefing this appeal, Molina's counsel discusses and relies on the now-vacated opinion that the Second District Court of Appeal issued before granting rehearing and issuing Lopez. Counsel urges that we follow the "initial decision" instead of the published opinion. We reject this argument, both because we agree with the reasoning of the final, published version of Lopez, and because counsel's discussion of and reliance on an opinion that has been superseded by an order for rehearing is inappropriate. (See Cal. Rules of Court, rules 8.1105(e)(1)(A), 8.1115(a).)
Our record is silent as to why, in fact, Molina's trial counsel chose not to contest whether the prosecution had adequately proven that he knew his weapon was an assault rifle. There is, however, a conceivable reason for the decision, which is fatal to Molina's claim of ineffective assistance in this procedural posture. (See People v. Weaver (2001) 26 Cal.4th 876, 926 ["In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions."].) At least conceivably, trial counsel could have decided that such an argument was likely to be rejected by the jury, and that raising it would erode the defense's credibility on other, stronger arguments. Such a decision falls well within "'the wide range of reasonable professional assistance,'" (id. at p. 925) and we will not second guess it on direct appeal.
Molina has demonstrated no error by the trial court, and no violations of his rights, relating to his counsel's concessions of guilt on some of the charges.
B. Misstatements of Reasonable Doubt Standard by Counsel
Molina argues that during closing arguments both the prosecutor and defense counsel misstated the reasonable doubt standard, each in a manner that lowered the prosecution's burden of proof. We find no misstatement of the reasonable doubt standard by the prosecutor, and no prejudicial misstatement by defense counsel.
1. Prosecution
The jury was instructed regarding circumstantial evidence using CALCRIM No. 224. During its rebuttal closing argument, the prosecutor commented on the issue as follows: "The circumstantial evidence, you can rely upon that evidence and if there are two reasonable conclusions from all of the circumstantial evidence and one conclusion leads you to a finding of not guilty, then that's what you have to do is find the defendant not guilty, but if based upon all of the circumstantial evidence, the reasonable conclusion is guilt, then that's what you have to do, that's what you have to do is find the defendant guilty. And you have to look at the totality of the evidence." Molina argues here that these statements constitute "misconduct" because the prosecutor "confounded the concept of rejecting unreasonable inferences with the proof beyond-a-reasonable-doubt standard" and "suggested the jury could find Molina guilty based on a reasonable account of the evidence." Molina also reads the prosecutor's statement to suggest that reasonable doubt can only be based on affirmative evidence, rather than the lack of evidence. We are not persuaded.
The instruction was the following: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
In the interest of judicial economy, we consider the merits of Molina's claim of error, and decline to decide the People's argument that he forfeited the issue by failing to raise the issue at trial. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1126 [addressing on appeal issue that would otherwise be forfeited to "forestall a petition for writ of habeas corpus based on a claim of ineffectual counsel."].)
"[W]hen the claim [of prosecutorial misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Crew (2003) 31 Cal.4th 822, 839 ["A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."].)
We do not find that the prosecutor misstated the law. In context, the most natural reading of the comments at issue is that the prosecutor was paraphrasing (accurately) the second paragraph of CALCRIM No. 224, emphasizing that before the jury could rely on circumstantial evidence to find Molina guilty, it "must be convinced that the only reasonable conclusion supported by the circumstantial evidence" is that Molina is guilty. On this reading of the transcript, the prosecutor did not supplant the reasonable doubt standard, or suggest that reasonable doubt had to be based on affirmative evidence and could not arise from a lack of evidence. Rather, the prosecutor did no more than contrast, in accord with the instructions, the situation where "there are two reasonable conclusions" that could be drawn from the circumstantial evidence from the situation where "the reasonable conclusion" is that Molina "is guilty." (Italics added.)
Even if the prosecutor's remarks were arguably open to being understood in the manner Molina proposes, elsewhere during argument the prosecutor discussed the reasonable doubt standard in terms Molina has not disputed were correct. Moreover, the trial court properly instructed the jury, using standard instructions, that it was the People's burden to prove guilt beyond a reasonable doubt, including a definition of that phrase; that the jurors must decide the facts based solely on evidence presented during trial; that attorney argument is not evidence; and that if any attorney comments conflict with the court's instructions, the jury is to follow the instructions. "It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions." (People v. Gonzales (2011) 51 Cal.4th 894, 940.) And we presume that "the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We therefore find no reasonable probability that the jury construed or applied the prosecutor's remarks in the complained-of fashion.
2. Defense
The trial court instructed the jury on reasonable doubt using CALCRIM No. 220. After referencing and quoting this instruction, in part, during closing argument, defense counsel remarked as follows: "[I]f you think the defendant is guilty, if you think he's guilty, you have to acquit him, that's not enough, you need more, you need the language that is in this instruction, you need more [than] I think he's guilty. There's got to be a good faith belief, it's not beyond all reasonable doubt but a good faith belief. I liken it to one's own conscience. Sometimes when something has happened to you during the day, or you've undergone something or you have to do something the next day, you get into bed, and something tugs on you, it just sort of goes around in your head and you can't stop thinking about it. When you're unsure, when you're not convinced beyond a reasonable doubt and you have an important decision to make and you just have a hunch or a suspicion or a belief or a feeling, it's not enough, that's not enough." Here, Molina argues that counsel effectively "lowered the prosecutor's burden of proof and added an element to the beyond a reasonable doubt standard" by "equating reasonable doubt to a 'good faith belief.'" He contends that this error amounts to ineffective assistance of counsel.
In context, defense counsel's statement—that "[t]here's got to be a good faith belief, it's not beyond all reasonable doubt but a good faith belief"—seems likely to have been a slip of the tongue. If the word "reasonable" is deleted from the statement, or replaced with the word "possible," and taken in context with the rest of the portion of the argument at issue, the statement reads as an unremarkable attempt to help the jury understand CALCRIM No. 220, which provides, in part: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." As recorded in the transcript, however, and taken in isolation, defense counsel's statement is simply incorrect; it is of course beyond reasonable doubt, and not a good faith belief, that is the governing standard for a jury's decision about charged offenses. Defense counsel also trod dangerously by analogizing the jury's task to more everyday decisions: "[J]udges and advocates have been repeatedly admonished that tinkering with the explanation of reasonable doubt is a voyage to be embarked upon with great care. [¶] Counsel trying to clarify the jury's task by relating it to a more common experience must not imply that the task is less rigorous than the law requires." (People v. Centeno (2014) 60 Cal.4th 659, 671.)
Nevertheless, to prevail on an ineffective assistance of counsel claim, Molina would have to show both that "(1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.) To establish prejudice, Molina bears the burden of showing a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different but for counsel's unprofessional errors. (Id. at p. 1147.) He must show prejudice "as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.)
We find no reasonable likelihood that the result of Molina's trial would have been any different absent the complained-of comments by defense counsel. (See In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503 ["'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . , that course should be followed.'"].) The comments were fleeting, and ameliorated by counsel's emphasis of the reasonable doubt standard as correctly articulated in the jury's instructions ("you need the language that is in this instruction.") A few moments before the comments at issue, for example, defense counsel stated: "The burden of proof we talked about, it's not on me, it's on the prosecution. And they've got to prove it beyond a reasonable doubt." Counsel then quoted verbatim from the jury instructions defining reasonable doubt. The prosecution, too, emphasized the correct standard for determining Molina's guilt. And, again, the jury was properly instructed that attorney argument is not evidence, and that if any attorney's comments conflict with the court's instructions, the jury is to follow the instructions. In the absence of any indication in the record to the contrary, we presume that the jury did so. (See People v. Gonzales, supra, 51 Cal.4th at p. 940.) We find defendant has failed to demonstrate prejudice, so his ineffective assistance claim fails.
C. Uncharged Conduct Evidence and Instructions
Molina contends that his counsel provided ineffective assistance of counsel by failing to object to testimony by J.M. about a prior incident of Molina threatening him, and failing to ask the court to instruct with CALCRIM No. 375 with respect to that testimony. Molina contends that, upon objection, the evidence would have been excluded, either because it is not admissible under Evidence Code section 1101, or because the trial court would have excluded it as unduly prejudicial, in comparison to its probative value, under Evidence Code section 352. We find that Molina's ineffective assistance claim fails because, even if his counsel's performance was deficient (an issue we do not decide), he has not demonstrated prejudice.
1. Additional Background
At trial, on direct examination by the prosecution, J.M. initially denied that Molina had threatened to kill him, and then stated that he could not remember. J.M. also testified that his relationship with Molina "was always good." The prosecutor followed up on this line of testimony by asking: "Do you recall telling the [investigating police officer] that you had an unpleasant experience with [Molina] prior to [the events giving rise to this case]?" J.M. responded: "A lot, but he's my son and I have always tried to take him by the right path." The prosecutor asked: "Do you recall telling the officer, quote, 'You're going to see that he came here once to threaten me and I had to knock him out too because if I didn't I had to defend myself because if not that was last year,' end quote?" J.M. responded: "That's true."
2. Analysis
We find it most expedient to address the issue of prejudice here, rather than deciding whether Molina's counsel's performance was deficient. (See In re Elizabeth G., supra, 88 Cal.App.4th at p. 503.) Molina was not convicted of attempting to kill J.M., and the jury did not return a true finding on the allegation that the attempted murder of J.M.'s employee was willful, premeditated, and deliberate. The defense chose not to contest that Molina was guilty on counts 3, 4, and 5, or the firearm enhancements. Thus, the issue disputed at trial on which Molina did not prevail was whether he attempted to murder J.M.'s employee (count 2). And even on that count, the question was not whether Molina performed the alleged actions, but rather the mental state with which he did them, that is, whether he had intent to kill. We find no reasonable probability that the brief mention of a minor physical altercation between Molina and J.M. from the previous year had any bearing on the jury's decision on that question. Because Molina has not shown prejudice from his counsel's alleged deficiencies, his ineffective assistance claim fails.
For similar reasons, we also reject Molina's argument that his counsel's several deficiencies, or assumed deficiencies, were prejudicial cumulatively, even if they were not prejudicial individually.
D. Stay of Punishment for Count 4
Molina contends that the trial court violated section 654 by imposing consecutive sentences for both counts 2 and 4, arguing that the attempted murder of J.M.'s employee was part of the same indivisible course of conduct as the assault committed against the same individual, and that the two offenses had the same objective. Citing Hicks v. Oklahoma (1980) 447 U.S. 343, Molina also contends his federal due process rights were violated by the imposition of a sentence in violation of section 654. (See Hicks v. Oklahoma, supra, at p. 346 [finding imposition of sentence in violation of state statute also violated federal due process rights].) We reject these arguments because substantial evidence supports the trial court's implicit determination that Molina harbored a separate intent and objective for each offense, so section 654 does not apply.
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) "'The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.'" (People v. Coleman (1989) 48 Cal.3d 112, 162.) We review the trial court's express or implied determination as to the application of section 654 for substantial evidence. (Ibid.)
There is substantial evidence in the record to support the trial court's implicit finding that Molina's conduct in committing the assault and the attempted murder of J.M.'s employee was divisible. Molina's attempt to murder J.M.'s employee was a separate volitional act, occurring approximately 10 minutes after the earlier assault, and only after Molina drove away from the scene, was chased by the police, and then decided to return. (See People v. Trotter (1992) 7 Cal.App.4th 363, 368 [finding series of three assaults during a single vehicle chase divisible, in part because "[a]ll three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible."].) Also, Molina's initial assault of J.M.'s employee was part of his attempt to get money from J.M. Molina's attempt to murder J.M.'s employee was, at least arguably, in pursuit of a different criminal objective, namely, to kill J.M.'s employee, perhaps out of frustration or a desire for revenge for his imminent arrest. The trial court therefore did not violate section 654 by failing to stay the punishment for count 4. It follows from this conclusion that Molina's federal due process rights also were not violated.
E. Consecutive Sentences
Molina contends that the trial court abused its discretion and violated his constitutional rights by running the sentences for his convictions consecutively. We find no appropriate basis for disturbing the trial court's sentencing decision.
"Within the limits set forth by the Legislature, a trial court has broad discretion to decide . . . whether to run the prison terms on multiple offenses concurrently or consecutively . . . ." (People v. Clancey (2013) 56 Cal.4th 562, 579; see § 669, subd. (a); Cal. Rules of Court, rule 4.425.) To show a trial court abused its sentencing discretion requires showing that no rational judge would have imposed that sentence, not just that another judge might have acted differently. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Only a single aggravating factor is required to impose a consecutive sentence. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Where a trial court has stated both proper and improper reasons for a sentencing choice, "a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper." (People v. Price (1991) 1 Cal.4th 324, 492.)
Here, the trial court stated at least one proper reason for each of its sentencing choices. The trial court reasonably concluded that assaults against J.M. and his employee (counts 3 and 4) had criminal objectives that were "predominantly independent" of the other conviction offenses, since substantial evidence supports the conclusion that the assaults were aimed at frightening the two victims so that J.M. would give Molina money, while the attempted murder (count 2) was aimed at killing J.M.'s employee, and Molina's actions giving rise to the reckless evasion charge were aimed at evading arrest. (See Cal. Rules of Court, rule 4.425(a)(1).) The assaults also involved separate acts of violence from the attempted murder. (Id., rule 4.425(a)(2).) And, although the assaults, the reckless evasion, and the attempted murder all occurred within a short period of time, it was reasonable to conclude they were not committed "so closely in time and place as to indicate a single period of aberrant behavior." (Id., rule 4.425(a)(3); see People v. Trotter, supra, 7 Cal.App.4th at p. 368.) Furthermore, counts 3 and 4 involved two different victims, even if Molina assaulted J.M. and his employee simultaneously and for the same criminal purpose. (See People v. Calhoun (2007) 40 Cal.4th 398, 408 [consecutive sentences may be imposed for a single "act of violence" injuring multiple victims, each listed in separate count].) The trial court's decision to run the sentences consecutively was therefore proper, and neither state law nor Molina's federal due process rights was violated.
Our conclusion here would not change even if we were to agree with Molina that some of the other reasons expressed by the trial court for choosing to impose consecutive sentences were improper. In the trial court, Molina did not object to the trial court's imposition of consecutive sentences, or claim that its reasoning in support of that decision was in any way inappropriate. We find no reasonable likelihood, however, that if such objections had been raised, the trial court's sentencing decisions would have been any different. As discussed above, there was at least one proper basis to support the decision to run each of the sentences consecutively. (See People v. Price, supra, 1 Cal.4th at p. 492; People v. Osband, supra, 13 Cal.4th at pp. 728-729.) Additionally, we will not assume that the trial court failed to consider all appropriate mitigating factors in the absence of affirmative evidence in the record supporting that conclusion. (Cal. Rules of Court, rule 4.409 ["Relevant factors enumerated in these rules . . . will be deemed to have been considered unless the record affirmatively reflects otherwise."]; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836 [similar].) Because Molina has failed to demonstrate prejudice, even assuming some errors in expressed reasoning, we will not disturb the trial court's decision.
F. Trial Court's Sentencing Discretion
Molina asserts that the trial court failed to understand the scope of its sentencing discretion with respect to the three firearm enhancements related to count 2. As noted, the trial court imposed a 20-year sentence with respect to the section 12022.53, subdivision (c) enhancement, and imposed but stayed terms of 10 and six years, respectively, for the section 12022.53, subdivision (b), and section 12022.5, subdivision (b) enhancements. Molina contends that the trial court "appeared to believe it had two—and only two—options: to dismiss the enhancements, or to retain them and impose the longest period of imprisonment." Molina proposes that the court was unaware of "one other option," namely, "to strike the enhancement that imposed the longest period of punishment and impose one of the other enhancements." Molina further contends that the trial court abused its discretion by imposing a total of 24 years for the firearm enhancements of counts 2, 3, and 4, instead of striking one or more of those enhancements. He contends that this decision is incompatible with the public policies underpinning recent amendments to section 12022.53. We are not persuaded that the trial court either misunderstood the scope of its discretion or abused that discretion.
Prior to January 1, 2018, the trial court was prohibited from striking section 12022.53 enhancement allegations. (See former § 12022.53, subd. (h) (effective Jan 1., 2012 ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."].) Effective January 1, 2018, however, section 12022.53, subdivision (h), was amended by Senate Bill No. 620 to state, in relevant part: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." (Stats. 2017, ch. 682, § 2(h).) Both before and after this amendment, section 12022.53 provided that if more than one enhancement is found true under that section (and, implicitly, not stricken), "the court shall impose upon that person the enhancement that provides the longest term of imprisonment." (§ 12022.53, subd. (f).) The court is prohibited from imposing certain other enhancements, including a section 12022.5 enhancement, in addition to an enhancement under section 12022.53. (§ 12022.53, subd. (f).)
When Molina was sentenced on May 11, 2018, defense counsel asked that the trial court strike the 20-year section 12022.53, subdivision (c) enhancement, and instead impose the 10-year section 12022.53, subdivision (b) enhancement. The trial court declined to do so, instead stating that it "hereby exercises its discretion" to impose the 20-year section 12022.53, subdivision (c) enhancement. The trial court also separately recited that it "hereby exercises its discretion" to impose but stay punishment for the section 12022.53, subdivision (b) enhancement and the section 12022.5 enhancement of count 2.
Counsel requested the 10-year enhancement, but apparently included an addition error, miscalculating 10 plus seven to equal 19: "[W]hat I would ask for is the midterm of seven years on the [sections187/664]. As to the enhancement of ten years, I would ask for that[,] for a total of 19 years. As to the other counts, I would ask that those counts run concurrent to that sentence and for a total of 19 years."
We find no ambiguity in this record, nor any evidence that the trial court misunderstood the scope of its discretion in the manner that Molina proposes. The trial court was well aware that its decision to impose the section 12022.53, subdivision (c) enhancement was an exercise of "discretion." It knew it could have exercised its "discretion" otherwise, by striking either or both of the section 12022.53 enhancements, pursuant to the relatively recently amended section 12022.53, subdivision (h). It simply chose not to do so. Having chosen not to strike the section 12022.53, subdivision (c) enhancement, the trial court correctly imposed the 20-year consecutive term required by that subdivision, and stayed punishment for the section 12022.53, subdivision (b) and section 12022.5 enhancements of count 2. (See §12022.53, subd. (f).)
Molina further contends that, even if the trial court understood the scope of its discretion, it nevertheless abused that discretion by declining to strike any of the firearm enhancements found true by the jury with respect to counts 2 through 4. He argues that the trial court's decision not to strike any of the firearm enhancements was inconsistent with the public policies underlying Senate Bill No. 620. We disagree. As our colleagues in the Second District recently observed, even after Senate Bill No. 620, giving the trial court discretion to strike enhancements that it did not have before, the same policy considerations that underlie the adoption of those enhancements by the Legislature also remain valid. (See People v. Pearson (2019) 38 Cal.App.5th 112, 117.) The trial court's sentencing decisions indicate that it viewed the facts and policy considerations weighing in favor of striking or dismissing one or more enhancements to be outweighed by the facts and policy considerations that weighed against doing so. Molina has proposed no appropriate basis for us to reweigh those factors and substitute our own judgment for that of the trial court, even if we were inclined to do so.
H. Cumulative Error
Molina argues that a "multitude of constitutional and state law error" during his trial, taken together, amount to prejudicial error, even if no one error was prejudicial on its own. For the reasons discussed above, we find no multitude of errors, rejecting most of his contentions. Our confidence in the verdict is not undermined by the harmless errors we have found or assumed for present purposes, taken separately or together, under any standard of review. The cumulative error doctrine does not apply.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: CODRINGTON
Acting P. J. FIELDS
J.