Opinion
D071543
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. NESTOR EDUARDO SANCHEZ, Defendant and Appellant.
Bird Rock Law Group and Andrea S. Bitar, 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, Peter Quon, Jr., Anthony DaSilva and Susan Elizabeth Miller, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS285460) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed. Bird Rock Law Group and Andrea S. Bitar, 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, Peter Quon, Jr., Anthony DaSilva and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Nestor Eduardo Sanchez of one count each of stalking his ex-wife, Becky Sanchez, and his daughter, Gabriella Sanchez (Pen. Code, § 646.9, subd. (a); counts 1 & 2), and three counts of making criminal threats to his wife, his daughter, and his son, Caleb Sanchez (§ 422; counts 3, 4 & 5). The trial court sentenced Sanchez to consecutive sentences on all counts and denied Sanchez's request to impose concurrent sentences on counts 1 and 3, counts 2 and 4, and counts 3 and 5. The trial court denied probation and sentenced Sanchez to five years eight months in prison. Sanchez's sentence for count 1, stalking Becky, consisted of the upper term of three years and the remaining four counts each consisted of the midterm of eight months with all terms imposed consecutively.
Because Sanchez's ex-wife and their children all share Sanchez's last name, we refer to those individuals by their first names for clarity.
Undesignated statutory references are to the Penal Code.
Sanchez appeals, contending (1) the trial court abused its discretion by denying his request for concurrent sentences on counts 3 and 5, pertaining to the criminal threats directed to Becky and Caleb, because these counts arose from a single act; and (2) the trial court failed to properly articulate its reasons for denying his request. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sanchez and Becky were married for 16 years and have three biological children: Gabriella, Caleb, and Nathan. Sanchez also has two older biological daughters, Brittany and Jessica, from a previous relationship, and both daughters lived with the couple throughout their marriage. In May 2009 the couple separated and their divorce was finalized in March 2010. The court granted Becky primary custody of their three biological children and granted Sanchez visitation rights. Subsequently, in a separate proceeding, the court granted Becky guardianship of Brittany and Jessica.
In 2010, following the divorce, Becky obtained a restraining order against Sanchez after he began following her and threatening her via phone calls, voicemails, e-mails, and text messages. Despite the restraining order, Sanchez continued to harass Becky by threatening her and threatening to take the children. Around the same time period, Sanchez also harassed Gabriella by following her and threatening her over the phone and in Facebook messages. Sanchez also harassed Gabriella through text messages, including messages that threatened, "I'm going to slit [Becky's] throat," and Becky's "going to be buried ten feet deep," and messages containing pictures of naked women Sanchez claimed to be dating. Sanchez's stalking, harassment and threats ultimately caused both Becky and Gabriella to change their phone numbers multiple times.
In 2014 Becky's restraining order expired and she obtained a new restraining order against Sanchez that restricted him from contacting her and three of the children: Caleb, Nathan, and Brittany. Nevertheless, Sanchez continued to send "hundreds" of threatening messages over various forms of communication. In one particular instance in late 2014 or early 2015, Sanchez called Becky on her cell phone while she was driving in her car with Caleb. Caleb answered the phone and placed it on speaker mode. Sanchez asked to speak to Becky and Caleb informed Sanchez that the phone was on speaker mode. Sanchez then stated, "I'm going to slit you guys' throats." Both Becky and Caleb considered the statement to be a legitimate threat against Becky and feared that Sanchez would carry out the threat. In addition to threatening to slit Becky's throat on more than one occasion, Sanchez also threatened to "put a gun in [her]," and "throw [her] 50 feet into the ocean."
From 2015 through 2016, Becky saved some of Sanchez's threatening voicemails. In the voicemails, Sanchez made the following threats: "I found you and I saw my kids and I'm coming for them"; "See, the problem is, is that now I'm going to come after you"; "Watch your back"; and "I'm going to fucking rid you of this earth." Sanchez also made similar threatening statements to Becky in text messages and e-mails that she saved, including the following statements: "All of you are right to fear me. I'm coming for you all and no one on God's green earth will save you from me. Believe that"; and "Bitch, I'm coming for you and your entire family. I don't give a fuck about your laws, your country, your nation, your feds, your CIAs, your FBIs. I am the new order."
Because Sanchez's threats sometimes suggested he knew the family's location, Becky felt compelled to move herself and the children multiple times. Both Becky and Gabriella stated that their fear of Sanchez forced them to modify their daily behavior to ensure he did not follow them or find out their location. Finally, in December 2015, following a threat from Sanchez that referenced Caleb's school and a location by the family's home, Becky had Caleb and Nathan each move in with someone else. Thus, at the time of trial, Becky, Caleb, and Nathan were each still living at three separate locations out of fear that Sanchez would find them.
DISCUSSION
A. Additional Background
The People informed the jury during closing argument that count 3, making a criminal threat to Becky, and count 5, making a criminal threat to Caleb, specifically arose from the speaker phone conversation between Sanchez, Becky, and Caleb, in which Sanchez exclaimed that he was "going to slit you guys' throats." The jury subsequently convicted Sanchez of both counts 3 and 5.
At sentencing, the trial court noted it had reviewed the probation officer's report, which recommended running the sentence on counts 3 and 5 consecutively, and read letters from the victims. The trial court and the parties also discussed whether section 654 applied to any of the counts and, thus, prohibited any consecutive sentencing. The People argued that section 654 did not apply to any counts. Sanchez's trial counsel disagreed and argued that under section 654, the terms for counts 1 and 3 and the terms for counts 2 and 4 should both be concurrent.
The trial court responded to the parties' arguments by noting "that even if there wasn't a 654 issue, it's within my discretion to run counts concurrent." Sanchez's trial counsel responded, "That's correct." The court expanded on its prior statement and stated, "And if the behavior was limited, that might be the correct course. [¶] But if it's such an egregious level of violations, it may well be appropriate to run them consecutive because . . . of the sheer volume of the threats."
Sanchez's trial counsel requested probation, a low-term sentence, reiterated his previous arguments regarding section 654, and raised an issue for the first time with the concurrent sentencing of count 3 with count 5. More specifically, Sanchez's trial counsel argued that, while there were two victims, Sanchez's threat while on speaker phone was "only one act" and, therefore, "the Court is within its discretion to run that count concurrent to . . . count three." The People responded by reviewing the extent and degree of stalking and threats that Sanchez committed over multiple years and the devastating effect his actions had on his victims, which included his own family and two non-relative stalking victims. The People further argued that Sanchez showed no remorse for his actions and requested that the trial court impose all counts consecutively.
After hearing statements of remorse from Sanchez, the trial court noted that "for years upon years, [Sanchez] committed the same violations of the law, the same harassment, the same threats." Citing the probation officer's report, the trial court then reviewed the criteria and circumstances affecting probation under California Rules of Court, rule 4.414. The trial court stated that Sanchez's case was "one of the most egregious stalking cases I've ever seen in 25 years" and subsequently denied probation.
All undesignated rule references are to the California Rules of Court. --------
The trial court then reviewed the criteria affecting mitigation and aggravation under rules 4.421 and 4.423. Citing the probation officer's report, the trial court noted the absence of substantial mitigating factors and the presence of multiple aggravating factors. The trial court further noted that the People's election to separate the various offenses for victims meant section 654 did not bar consecutive sentencing. Finally, the trial court once again acknowledged its discretionary ability to run sentences concurrently and provided the following explanation for why consecutive sentencing was appropriate on all counts:
"Now, as I indicated, in my discretion, I could run counts concurrent because—because the threats are current during the period of stalking. [¶] However, there were so many instances of harassment and stalking and many threats were made. And given—given just the nature of the harassment and the violations of the law, I am not going to run these counts concurrent. He deserves to be punished separately under the law for each count that he was convicted of."
Thus, based on the factors in aggravation, the trial court imposed consecutive sentences of eight months for counts 3 and 5.
B. Analysis
Sanchez contends the trial court abused its discretion when it denied his request to impose concurrent sentences on counts 3 and 5, and thus we should reverse the trial court's ruling. More specifically, Sanchez argues that because both counts arose from a single verbal threat during a single period of aberrant behavior, the court's sentencing ignored the spirit and intent of rule 4.425. Sanchez further contends the trial court failed to give a clear and distinct statement of its reasons under sections 654 and 669 for imposing consecutive sentences and therefore, in the alternative, we should remand this matter to the trial court to permit it to clearly state its reasons for imposing consecutive sentences. The People assert the trial court properly exercised its discretion because the record supported the court's discretionary sentencing choice. The People further assert defendant forfeited its contention that the trial court failed to clearly separate its reasons by failing to object below. Finally, assuming Sanchez did not forfeit this contention, the People assert the trial court properly stated its reasons under sections 654 and 669 for consecutive sentencing.
If the imposition of consecutive terms is not mandatory, the decision to impose consecutive or concurrent terms is left to the sentencing court's discretion under section 669. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263; see People v. Valdez (2011) 193 Cal.App.4th 1515, 1524.) "In exercising its discretion whether to impose concurrent or consecutive terms, a trial court should consider the factors set forth in [ ] rule 4.425." (Rodriguez, supra, at p. 1262.) The criteria for imposing consecutive rather than concurrent terms include whether: "(1) The crimes and their objectives were predominately independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425(a).) Other criteria include "[a]ny circumstances in aggravation or mitigation," except a fact used to impose an upper term or an enhancement, or a fact that is an element of an offense. (Rule 4.425(b).)
A sentencing court is required to provide a statement of reasons when imposing consecutive sentences. (Rule 4.406(a), (b)(5).) However, a defendant's claim that the trial court stated inadequate or erroneous reasons for imposing consecutive sentences is forfeited on appeal unless the defendant timely and specifically objected below on the ground sought to be raised on appeal. (People v. Boyce (2014) 59 Cal.4th 672, 730-731.) Nevertheless, a single valid factor is sufficient to justify a sentencing choice. (People v. Dancer (1996) 45 Cal.App.4th 1677, 1695-1696.) Moreover, a court is "presumed to have been aware of and followed the applicable law" when imposing a sentence. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Therefore, the burden is on Sanchez to demonstrate that the court misunderstood its sentencing discretion. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.)
Here, Sanchez contends the court's sentencing ignored the spirit and intent of rule 4.425. However, we do not find support in the record for Sanchez's argument.
In determining the appropriate sentence for Sanchez, the trial court considered letters from the victims and the probation report, which listed four circumstances in aggravation, only one circumstance in mitigation, and Sanchez's lack of a criminal record. The trial court also identified the specific factors in aggravation that existed and found that all of Sanchez's crimes involved: threats of great bodily harm and a high degree of cruelty, viciousness, and callousness; victims that were particularly vulnerable; planning and sophistication; and taking advantage of a position of trust or confidence to commit the offenses. (Rule 4.421(a)(1), (3), (8), (11).)
Sanchez contends that the trial court abused its discretion by imposing consecutive terms for a single, verbal statement that resulted in two criminal threat counts. In responding to defense counsel's arguments for imposing concurrent sentences, the trial court agreed with the crux of those arguments and noted that if Sanchez's harassment and threats were limited, concurrent sentencing might be appropriate. However, the trial court found that the sheer volume of Sanchez's threats in the record constituted an "egregious level of violations" and therefore, Sanchez's single, verbal statement was not an isolated incident. The trial court subsequently reiterated that because "there were so many instances of harassment and stalking and many threats," that the nature of Sanchez's harassment and violations meant Sanchez deserved to be punished separately for each count.
On whole, the trial court pronounced ample aggravating factors to justify imposing consecutive terms as to counts 3 and 5 and therefore did not abuse its discretion.
To the extent Sanchez contends the trial court failed to articulate a clear and distinct statement of its reasons under sections 654 and 669 for imposing consecutive terms, he forfeited his claim by failing to object below. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) After the trial court explained Sanchez's sentence and the reasons for imposing consecutive terms, defense counsel objected to imposing the victims' restraining order for a 10-year period. Consequently, the trial court afforded Sanchez a meaningful opportunity to assert the objection he now attempts to raise on appeal. (People v. Boyce, supra, 59 Cal.4th at p. 731.) His failure to act resulted in a forfeiture of the claim. (Ibid.)
Nonetheless, Sanchez argues that defense counsel did not have a meaningful opportunity to object because the trial court did not clearly and analytically separate its reasoning and, thus, appeared confused about either the arguments or appropriate sentencing law. It is well settled that section 654 precludes imposing multiple punishments for multiple offenses committed during an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Here, defense counsel first argued that concurrent sentencing was appropriate under section 654 because the criminal threats that constituted counts 3 and 4 occurred within the stalking time period for counts 1 and 2, respectively. The court twice addressed Sanchez's 654 arguments when it declined to impose concurrent sentences because of the volume and nature of Sanchez's stalking and numerous threats.
Additionally, despite failing to reference rule 4.425 explicitly, Sanchez's counsel distinguished his arguments under section 654 from his subsequent argument that Sanchez now reiterates on appeal. The multiple-victim exception to section 654 applies to criminal threats that constitute a violation of section 422. (People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024.) Thus, Sanchez's counsel conceded that counts 3 and 5 involved two victims and therefore only argued that it was within the court's discretion to impose concurrent sentences on those counts because they arose from a single, criminal threat.
Although the trial court also failed to explicitly reference rule 4.425, the record shows the court was aware it had sentencing discretion to impose concurrent sentences on all counts. Moreover, the court unambiguously indicated it declined to do so on all counts based on a variety of aggravating factors, including the volume of threats made and the nature of Sanchez's harassment and violations of the law. This was sufficient. (Cf. People v. Osband (1996) 13 Cal.4th 622, 728-729; People v. Bravot (1986) 183 Cal.App.3d 93, 98 ["Articulation of one criterion for the imposition of a consecutive sentence is sufficient."].) There is no indication in the record that the court misunderstood its sentencing discretion to impose concurrent sentencing. Accordingly, no remand for resentencing is required.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. DATO, J.