Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County Super. Ct. No. TA083062, Steven C. Suzukawa, Judge. Affirmed.
Dwyer & Biggs and John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant Gilbert Quiroz.
Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant Cecilio Alvarado.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
SUMMARY
Gilbert Quiroz was convicted of attempted murder, aggravated kidnapping, simple kidnapping, carjacking and robbery with firearm and gang allegations found true. Cecilio Alvarado was convicted of assault with a firearm, aggravated kidnapping, kidnapping, carjacking and robbery with firearm and gang allegations found true. Both appeal, asserting claims of sentencing error and ineffective assistance of counsel. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
Very late on February 24, 2005, Jose Gutierrez got a telephone call from “Chivo.” Chivo said he had the money he owed Gutierrez for some tire rims Gutierrez had sold him. Gutierrez picked up his friend Gerardo Garcia, and the two drove in Gutierrez’s truck to Chivo’s house in Paramount between midnight and 1:00 a.m. As soon as Gutierrez got out of the truck, he saw “Demon” (the name by which he knew Quiroz) coming at him holding a gun and duct tape. Quiroz grabbed Gutierrez by the neck and started wrapping Gutierrez’s head with the tape as Gutierrez struggled. Gutierrez also saw “Pelon” (the name by which Gutierrez knew Alvarado) with a gun as well as others with guns.
Quiroz took Gutierrez’s keys and gave them to “one of his buddies.” Two other men grabbed Garcia from the truck, and Gutierrez saw his truck being driven away. Quiroz and Alvarado began “pistol-whipping” Gutierrez and “stomping on his face.” Quiroz “mostly” hit and kicked Gutierrez, but Alvarado hit him a couple of times, too. Chivo’s mother (Elvira Lopez) heard screaming and came out of her house. She told the men to leave and said she was calling the police. Quiroz told her nothing was going on, and she went back inside.
At gunpoint, Quiroz and Alvarado took Gutierrez and Garcia to Alvarado’s truck and drove them to another location in Compton. Garcia was in the front with Alvarado driving; Gutierrez was in the back with Quiroz. Quiroz told Gutierrez he was going to kill him. Quiroz and Alvarado took Gutierrez and Garcia to a dark garage in Compton, and demanded, “Where’s that at?” Gutierrez understood this to mean Quiroz and Alvarado knew about a bag of marijuana he was holding at his house for someone else. Alvarado left with Garcia while Quiroz held Gutierrez at gunpoint for about 20 minutes. During that time, Quiroz told Gutierrez he (Gutierrez) had messed up, he had killed his friend and he was going to die. Alvarado’s brother (Raul “Mosco” Alvarado) had been shot and killed three days before in Lakewood. Mosco had been a “pretty good friend” to Gutierrez. He told Quiroz he had nothing to do with Mosco’s death. Quiroz told Gutierrez he was “lucky.” If Gutierrez had not come that day, Quiroz was going to kidnap Gutierrez’s mother the next day.
Gutierrez testified at trial he “wouldn’t have came over here” if Quiroz had not said he was going to kidnap his (Gutierrez’s) mother, but “because of what [Quiroz] said to [him, he] couldn’t take it.”
Alvarado and Garcia returned with the bag of marijuana. A man came out to the garage from the house, and Alvarado gave him the marijuana and Gutierrez’s house and car keys. Quiroz told Gutierrez, “We’re going to kill you.” Alvarado was walking around, saying, “My brother’s dead. I don’t know what is going to happen. I don’t know.”
Gutierrez told Quiroz and Alvarado to drive toward Bellflower and he would get them some money. Because Gutierrez had given them the marijuana and was going to give them this money, Quiroz said they would let Gutierrez go free. Gutierrez had thought he could walk to the friend’s house by himself, lock himself inside and escape, but Alvarado walked him to the door at gunpoint, and Gutierrez did not want to involve his friend or the friend’s family. He knocked lightly and, when no one answered, said no one was home so Alvarado started to walk back to the truck. Gutierrez actually had about $3,000 in his pocket from selling a car two days before. He pretended his friend had opened the door to give him the money as Alvarado turned away and gave it to Quiroz who also demanded the ring Gutierrez was wearing.
Alvarado started driving to another location in Lynwood. Quiroz told Gutierrez “they weren’t going to do anything to [him] anymore.” Gutierrez thought he had given them enough and promised not to say anything and to “forget about this.” Quiroz told him to get out and start walking. As he did, Gutierrez felt “that gut feeling” and turned to see Quiroz shooting at him. Hit in the stomach, Gutierrez blacked out. When he hit his head on the ground, he woke up and heard Quiroz telling Alvarado, “Shoot his ass. Shoot his ass.” Gutierrez got up and ran as Alvarado backed up his truck to come after him. Quiroz came after him, running. Gutierrez ran into a trailer park and collapsed after someone let him inside.
At the hospital that day, Gutierrez spoke with Sergeant Daren Diviak of the Los Angeles Police Department and told him “Demon” and “Pelon” were responsible for his injuries. Gutierrez required surgery and was in the hospital for a week. Sergeant Diviak knew both “Demon” and “Pelon” to be members of the Compton Varrio Segundo (CVS) gang and prepared separate six-pack photo lineups with Quiroz’s and Alvarado’s pictures. Gutierrez identified both Quiroz and Alvarado in the photo lineups.
A year later, as a result of his injuries, he still could not carry anything over 40 pounds.
A search warrant was executed at Alvarado’s house in Paramount where officers retrieved a newspaper article about Raul Alvarado’s death, photographs of CVS gang members, a gun and ammunition and compact discs with the names “Pelon” and “Dreamer.”
Quiroz and Alvarado were arrested and charged with one count each of attempted premeditated murder (count 1), kidnapping to commit robbery (count 2), kidnapping (count 3), carjacking (count 4), second degree robbery (count 5) and conspiracy to commit murder (count 6), with gang allegations and further special allegations as to both that Quiroz had personally discharged a firearm and caused great bodily injury. As to Quiroz only, there were further allegations he had two prior serious and/or violent felony convictions, one prior serious felony conviction and two prior prison terms.
At trial, the People presented evidence of the facts summarized above. In addition, Sergeant Diviak testified that when Gutierrez identified Quiroz and Alvarado at the preliminary hearing, Quiroz shouted, “Fucking rata!” Sergeant Diviak explained “rata” meant “rat, someone who snitches or tells.” Los Angeles County Sheriff’s Deputy Timothy Brennan, a 24-year police veteran and gang expert, testified regarding criminal street gangs and the CVS gang in particular. He testified that both Quiroz and Alvarado were CVS gang members based on their prior admissions of their status to police, their association with other CVS members and gang tattoos on their bodies.
Neither Quiroz nor Alvarado presented evidence in his own defense.
The jury convicted Quiroz as charged on all counts except conspiracy (count 6) and found true the gang allegations as to counts 1 through 5. As to count 1, the jury found Quiroz had personally and intentionally discharged a firearm causing great bodily injury and, as to count 3, that he had personally used a firearm.
The jury convicted Alvarado of the lesser offense of assault with a firearm, kidnapping to commit robbery, kidnapping, carjacking and second degree robbery, with gang allegations found true as to all of these counts. As to counts 1 and 3, the jury found Alvarado was personally armed; as to counts 2, 4 and 5, the jury found a principal personally used a firearm. He was acquitted of the conspiracy count.
The trial court sentenced Quiroz to state prison for a term of 75 years to life plus two additional life sentences, calculated as follows: a life sentence for attempted murder (count 1) plus 15 years for the gang enhancement plus 25 years to life for the firearm enhancement; a life sentence for aggravated kidnapping (count 2) plus 10 years for the gang enhancement; a mid-term base of 5 years for simple kidnapping (count 3) plus 10 years for the gang enhancement plus 4 years for the firearm enhancement; 15 years to life for carjacking (count 4) plus 10 years for the gang enhancement; a mid-term base of 3 years for robbery (count 5) plus 10 years for the gang enhancement. The court ordered the sentences on counts 2 and 4 to run consecutive to the sentence on count 1; the sentence on count 3 was ordered to run concurrently and the sentence on count 5 was stayed.
The trial court sentenced Alvarado to state prison for a term of 45 years to life plus an additional life sentence, calculated as follows: 15 years to life for carjacking (count 4) plus 10 years for the firearm enhancement; life with the possibility of parole for aggravated kidnapping (count 2) plus 10 years for the gang enhancement plus 10 years for the firearm enhancement, ordered to run consecutive to the sentence on count 4; a mid-term of 3 years for assault with a firearm (count 1) plus 3 years for the gang enhancement plus 1 year for the firearm enhancement, ordered to run concurrent to the sentence on count 4; a mid-term of 5 years for simple kidnapping (count 3) plus 10 years for the gang enhancement plus 1 year for the firearm enhancement, also ordered to run concurrently; and the mid-term of 3 years for robbery (count 5) plus 10 years for the gang enhancement plus 10 years for the firearm enhancement, ordered stayed.
Quiroz and Alvarado appeal.
DISCUSSION
I. Penal Code section 654 Does Not Bar Imposition of Consecutive Sentences for Kidnapping and Carjacking.
All undesignated statutory references are to the Penal Code.
According to Quiroz (joined by Alvarado), the trial court erred in ordering the sentences on count 2 (aggravated kidnapping) and count 4 (carjacking) to run consecutively to the sentence on count 1 (attempted murder). He says his sentencing was in violation of section 654 because these counts amounted to an indivisible course of conduct. We disagree.
Alvarado has adopted all arguments raised in Quiroz’s appellate brief which inure to his benefit. (Alvarado was convicted of assault with a firearm and not premeditated murder on count 1.)
Section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”
Consistent with this provision, if a defendant acts with multiple criminal objectives that were “independent of and not merely incidental to each other,” he may be punished for each offense even where the offenses were otherwise part of an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Beamon (1973) 8 Cal.3d 625, 637-639.)
Here, in sentencing Quiroz, the trial court stated: “As to count 4, which is the carjacking count, the court will find that there were separate motives, separate objectives in that the carjacking was completed, obviously, once the vehicle was taken. In the court’s view, the attempted murder which took place after all of the events of that evening, had a separate motive for getting rid of a witness; and the court views the violence perpetrated upon the victim in that particular situation, that being the attempted murder, was gratuitous. Therefore, the court will sentence count 4 consecutive. . . .
“As to count 2, again, the court will make the finding that there were separate objectives for the carjacking and the kidnapping. The carjacking was completed once they left the garage; and the kidnapping went to a different location[], different crimes were committed; and, again, I find separate objectives and intents. . . .”
In sentencing Alvarado, the court took his “lesser involvement” into consideration, but indicated the sentence as to counts 2 and 4 should be consecutive for the same reasons stated for Quiroz. “[I]t was a situation where there were separate objectives for the kidnapping and carjacking. . . . [S]eparate sentences are appropriate.”
On this record, not only was there evidence that Quiroz and Alvarado acted in retaliation for the murder of Alvarado’s brother, but there was substantial evidence of multiple objectives. First, Gutierrez’s truck was taken from him and he was beaten. There was evidence that Quiroz and Alvarado knew about drugs in Gutierrez’s possession and wanted the drugs which they took as well. Gutierrez thought that would be “enough for them.” Quiroz and Alvarado next took money and a ring from him, and Quiroz told Gutierrez (who promised not to say anything and to forget what went on) he could go free. Gutierrez testified that he repeatedly denied any involvement in Mosco’s murder and said Mosco had been a friend of his; Deputy Brennan testified that gangs controlled drug sales in their territories and committed “dope rip-offs,” kidnappings and robberies of drug traffickers who refused to “kick down” money to the gang. As the trial court’s findings of separate objectives were supported by substantial evidence, Quiroz and Alvarado have failed to demonstrate prejudicial error. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
II. The Trial Court Properly Exercised Its Discretion in Imposing Consecutive Sentences.
Quiroz (joined by Alvarado) further claims that the trial court was either unaware it had discretion to impose concurrent sentences under section 667, subdivision (c), or abused its discretion in sentencing Quiroz (and Alvarado) as it did. Again, the record does not support this argument.
In People v. Lawrence (2000) 24 Cal.4th 219, 233, our Supreme Court stated: “If there are two or more current felony convictions ‘not committed on the same occasion,’ i.e., not committed within close temporal and spatial proximity of one another, and ‘not arising from the same set of operative facts,’ i.e., not sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which the defendant stands convicted, then ‘the court shall sentence the defendant consecutively on each count’ pursuant to subdivision (c)(6). Conversely, where a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’ as we have construed those terms in [People v.] Deloza [(1998) 18 Cal.4th 585] and the instant case, consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (Initial italics in original, further italics added.)
As set forth in section I, ante, the trial court’s comments on the record support the conclusion that the court both recognized and exercised its discretion to sentence both defendants consecutively. Absent evidence to the contrary, “we presume that the trial court has properly followed established law.” (People v. Diaz (1992) 3 Cal.4th 495, 567; and see People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Moreover, for the reasons addressed in section I, ante, Quiroz (as joined by Alvarado) has failed to demonstrate prejudicial error in the trial court’s exercise of its discretion.
III. Consecutive Sentencing Did Not Violate the Sixth Amendment.
According to Quiroz (joined by Alvarado), under Cunningham v. California (2007) 127 S.Ct. 856, the Sixth Amendment requires the jury to determine the facts justifying the imposition of consecutive sentences. We disagree.
After Cunningham, supra, 127 S.Ct. 856, the California Supreme Court revisited this issue in People v. Black (2007) 41 Cal.4th 799, 823 (Black II) and reaffirmed that the imposition of consecutive terms does not implicate a defendant’s Sixth Amendment rights. Accordingly, Quiroz and Alvarado have failed to demonstrate error in this regard.
IV. Appellants’ Ineffective Assistance of Counsel Claims Lack Merit.
According to Quiroz, he was prejudiced by his counsel’s ineffective assistance in failing to object to references to him as “Demon.” According to Alvarado, he was prejudiced by his counsel’s failure to request a limiting instruction regarding the testimony that Quiroz had called Gutierrez a “fucking rata” at the preliminary hearing. According to both, they were prejudiced by their counsel’s failure to object to gang expert testimony that both Quiroz and Alvarado intended to benefit a criminal street gang in committing their crimes. We disagree.
First, an appellate court will only reverse a conviction on an ineffective assistance of counsel claim “if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Bradford (1997) 14 Cal.4th 1005, 1052, italics added.) Failure to object to particular evidence generally involves tactical decision-making and seldom establishes counsel’s incompetence. (People v. Frierson (1979) 25 Cal.3d 142, 158.) Moreover, an appellant must establish not only that his counsel’s performance was deficient to the point it fell below an objective standard of reasonableness but must also demonstrate a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 684-685.)
Regarding references to Quiroz as “Demon,” Gutierrez testified that he only knew Quiroz by this name and referred to Quiroz as “Demon” when he identified him in the hospital for Sergeant Diviak. There was considerable testimony that police knew Quiroz by this name, that Quiroz identified himself to police on multiple occasions as a CVS gang member and bore CVS tattoos. In light of the overwhelming evidence of his guilt and in support of the special allegations, Quiroz has failed to demonstrate prejudicial error.
Similarly, as to Alvarado’s claim based on the failure to request a limiting instruction regarding Quiroz’s “fucking rata” statement to Gutierrez at the preliminary hearing, on this record, Alvarado has failed to demonstrate that he would have achieved a more favorable result had such a limiting instruction been given. As the Attorney General argues, Alvarado’s approach at trial was to emphasize Quiroz as the one directing the action which apparently resulted in his conviction for assault with a firearm instead of attempted murder. Nevertheless, there was overwhelming evidence of his involvement in all of these offenses.
Finally, both appellants claim prejudice arising out of their counsel’s failure to object to gang expert testimony (in response to a lengthy hypothetical based on the facts of this case) opining that the defendants’ intent was to benefit their gang, and the Attorney General concedes that the testimony “appears improper.” (See People v. Killibrew (2002) 103 Cal.App.4th 644, 657.) However, as the Attorney General observes, it cannot be determined whether counsel made a tactical decision not to object and potentially highlight this expert opinion, choosing instead to elicit testimony on cross-examination acknowledging that the crimes may have been committed for non-gang purposes. Indeed, both counsel argued that the case was not about gang retribution; it was “personal.” In any event, assuming error, in light of the extensive evidence regarding Quiroz’s, Alvarado’s and his brother Raul’s gang involvement, neither appellant can demonstrate a reasonable probability that the outcome would have been any different absent such error.
DISPOSITION
The judgments are affirmed.
We concur: PERLUSS, P.J., ZELON, J.