Opinion
A129338
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. RAYMUNDO SANDOVAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H48306)
A jury found defendant guilty of assault with force likely to cause great bodily injury (Pen. Code, §245, subd. (a)(1)), and defendant pleaded no contest to the charge of unlawful possession of ammunition (§ 12316, subd. (b)(1)). The trial court sentenced defendant to an aggravated four-year term for the assault, plus a consecutive term of eight months for unlawful possession of ammunition. On appeal, defendant challenges his sentence and asserts that the court failed to state its reasons for sentencing him to the aggravated term or for imposing a consecutive sentence. Defendant acknowledges that he did not object to the sentence in the trial court and claims that his counsel provided ineffective assistance for failing to object to the sentence. We conclude that defendant has forfeited any challenge on appeal to his sentence. We also reject his claim of ineffective assistance of counsel because we conclude that he cannot establish prejudice. Accordingly, we affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
The Information, Trial, and Verdicts
On February 8, 2010, an information was filed charging defendant in count 1 with assault with a deadly weapon (§ 245, subd. (a)(1)), in count 2 with battery with serious bodily injury (§ 243, subd. (d)), in count 3 with unlawful possession of ammunition (§ 12316, subd. (b)(1)), and in count 4 with assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)). The information also alleged that defendant was prohibited from owning a firearm due to his 2008 conviction for violating section 487, subdivision (a), within the meaning of sections 12021 and 12021.1 and Welfare and Institutions Code section 8100 and 8103. As to count 4, the information further alleged that defendant inflicted great bodily injury during the commission of the offense pursuant to section 12022.7, subdivision (a).
On April 15, 2010, the trial court granted defendant's motion to sever count 3 and bifurcate his prior conviction into a separate trial. On April 22, 2010, defendant pleaded no contest to count 3.
At trial, the evidence established that on August 10, 2009, Nathan Eckloff's car was vandalized, costing him over $15,000 in damages. His neighbor described a person who had bragged about vandalizing his car.
Five days later, on August 15, 2009, Eckloff returned home from work when his brother told him that the men who had vandalized his car were outside on the corner. Eckloff ran to the corner and verbally confronted the man standing there who fit his neighbor's description of the man who had bragged about vandalizing the car. The young man immediately began running away and Eckloff chased him for two blocks before he lost sight of him.
While returning home, Eckloff went through an alley leading to his house. A car pulled into the alley and blocked him. Seven or eight men exited the car, and others appeared and surrounded Eckloff. Defendant repeatedly accused Eckloff of "fucking with my familia." Another person "tomahawked" Eckloff on the head with a glass bottle. Eckloff fell to the ground and defendant grabbed him by the head and slammed his knee into his face, striking the bridge of his nose. Defendant then kneed Eckloff in the side of the head, while other members of the group kicked and hit his body. Eckloff could feel sticks and boards striking his body.
Eckloff was able to get off the ground and run down the alley. As he ran down the alley, a truck pulled up and blocked his path. Eckloff heard gunshots; the people who had been in the truck ducked behind the truck doors for safety and Eckloff was able to run past the truck. Eckloff fled to his neighbor's house where he called the police. The paramedics took Eckloff to the hospital.
The officers responding to the call spotted defendant running away from the area and towards his residence. The officers detained him and found .32-caliber shell casings in his residence. They found a .38-caliber bullet in his pant pocket. Defendant tested negative to the presence of gunshot residue on his hands. Police officers investigating the scene of the assault found a .38 special revolver concealed in the bushes.
On August 16, 2009, the police showed Eckloff a photo lineup. Eckloff identified defendant as the person who initially approached him during the assault and who grabbed him by the head and slammed his knee into his face several times.
On May 4, 2010, the jury found defendant guilty of count 4, assault with force likely to cause great bodily injury. The jury found the personal infliction of great bodily injury allegation not true. The jury acquitted defendant on counts 1 and 2.
Sentencing
On June 14, 2010, the court held the sentencing hearing. The court stated that defendant was convicted of a section 245, subdivision (a)(1), and prior to trial defendant entered a plea of no contest to ammunition as possessed by an ex-felon. The court stated that its tentative ruling was to follow the probation officer's recommendation of sentencing defendant to four years and eight months in the state prison. The court asked if there was any comment for the record.
Defense counsel asked the court for leniency. Counsel argued that the most reasonable interpretation of the jurors' verdicts was that they believed defendant had aided and abetted the assault. He stressed that defendant had not committed any crimes until 2007, and that he worked full time until three years ago when he was laid off.
The court responded that it concluded "based on the testimony, that the jury made the right decision that [defendant was] one of the players involved in this thing." The court noted that the victim "got the crap beat out of him, and, you know, the thing is hey, stuff happens out there, but when it's six or eight guys on one guy it's just not right. Now, he got a broken nose and some other injuries. I really think he might have gotten killed or more serious injuries . . . . I think the shooting of the gun actually saved the victim from further injury and maybe even getting killed. [¶] So instead of looking at a manslaughter beef or murder beef or something else, this is just an assault with a deadly weapon."
The court summarized as follows: "So, No. 1 is, I don't like the fact that six or eight guys jumping on one guy and beating the heck out of this guy. [¶] No. 2 is, what is an ex-felon doing with ammunition? . . . Up to no good. I meant because only ammunition works in a gun. [¶] Now, like I say, you won this case because you didn't get the strike. You're not getting 80 to 85 percent time, you're getting half time. So, as the judge I have to do what I think is right."
The court found that "the circumstances in aggravation pursuant to [California Rules of Court, rule] 4.421(a)(1), (a)(8), (b)(1), (b)(2), (b)(4) and (b)(5)" applied and that there were no circumstances in mitigation. It therefore imposed the aggravated term of four years for the conviction of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The court imposed one-third the mid-term for the possession of ammunition (§ 12316, subd. (b)(1)), which was eight months to be served consecutively on the four-year sentence. Thus, the court imposed on defendant a total term in the state prison of eight years, four months.
Defendant filed a timely notice of appeal.
DISCUSSION
I. The Sentence
Defendant contends the trial court committed reversible sentencing error by not adequately stating the reasons for its sentencing choice on the record as required by section 1170, subdivisions (b) and (c). The trial court set forth the rules referring to the aggravating factors when it sentenced him to the aggravated term for count 4, but defendant maintains it did not set forth the actual facts to support these rules. (See People v. Enright (1982) 132 Cal.App.3d 631, 635-637 [recitation of numbers is insufficient].) Additionally, he claims the court erred by failing to provide the reasons for imposing the sentence consecutively rather than concurrently. (People v. Whitehouse (1980) 112 Cal.App.3d 479, 486 ["Reasons for imposing consecutive terms, as well as aggravating base terms, must be expressly stated"].)
It is undisputed that defense counsel did not object to the sentence in the trial court. "In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.] These principles are invoked as a matter of policy to ensure the fair and orderly administration of justice. (Cf. Evid. Code, §§ 353, 354 [preserving evidentiary claims].)" (People v. Scott (1994) 9 Cal.4th 331, 351.)
In People v. Scott, supra, 9 Cal.4th 331, the court expressly held "that the waiver doctrine should apply to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases . . . in which the court purportedly erred because it . . . failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) Accordingly, defendant has forfeited his claims of sentencing error.
II. Ineffective Assistance of Counsel
Defendant argues that his trial counsel's assistance was ineffective and in violation of his Sixth Amendment right to counsel because his attorney failed to object to the court's sentence on the grounds that the court failed to explain adequately its reasons for imposing the aggravated term for the conviction on count 4 and for imposing a consecutive sentence.
A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. (Strickland v. Washington (1984) 466 U.S. 668, 689; In re Andrews (2002) 28 Cal.4th 1234, 1253.) A defendant claiming ineffective assistance of counsel in violation of his or her Sixth Amendment right to counsel must first show that " 'counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' " (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland, supra, at p. 688.) "Second, defendant must show that the inadequacy was prejudicial, that is, ' "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' (People v. Ledesma, supra, at pp. 217-218, quoting Strickland . . . , supra, at p. 694 . . . .)" (People v. Diaz (1992) 3 Cal.4th 495, 557.)
Here, even if we presume that defendant's evidence shows that trial counsel's representation was not objectively reasonable, his claim of ineffective assistance of counsel fails because he cannot establish prejudice. Defendant argues that there is a reasonable probability that the sentencing result would have been different had his trial counsel objected to the sentence. However, he fails to cite to any evidence in the record to support this conclusory statement. A review of the record does not support defendant's contention.
When sentencing defendant to the aggravated term, the trial court cited various subdivisions under California Rules of Court, rule 4.421. This rule sets forth the factors the court is to consider when deciding whether to apply an aggravated term.
The trial court stated that it found California Rules of Court, rule 4.421(a)(1) applied to defendant's crime. This provision states that a factor to consider is whether "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness[.]" Prior to announcing that this provision applies, the court explained that the assault involved a great amount of violence as it involved six or eight guys beating "the crap" out of the victim. The court elaborated that the victim suffered a broken nose but the threat was much greater because the court believed the victim would have been killed or would have suffered more serious injuries had someone not shot a gun, which provided the victim an opportunity to escape.
The court also cited California Rules of Court, rule 4.421(a)(8), which provides that a factor to be considered is whether "[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism[.]" Here, the lower court clearly expressed concern that defendant participated in an attack with a number of other people to beat up an unarmed victim. The trial court therefore implicitly found that the trapping of the victim in an alley and the subsequent assault by a group of people involved some coordination and planning.
The court also referred to California Rules of Court, rule 4.421(b)(1), (b)(2), (b)(4), and (b)(5) when it applied the aggravated term. Rule 4.421(b) sets forth the factors relating to the defendant that the court should consider when deciding whether to impose the aggravated term. The provisions cited by the court include the following: defendant engaged in violent conduct indicating a serious danger to society, defendant had prior convictions, defendant was on probation when he committed the crime, and defendant's prior performance on probation was unsatisfactory. Here, the record establishes that defendant was an ex-felon on felony probation when he assaulted the victim, and the court stressed these factors when it questioned what an ex-felon was doing with ammunition.
Contrary to defendant's conclusory argument, the record establishes that defendant suffered no prejudice as a result of his counsel's failure to object to the aggravated sentence. The trial court did not simply recite rules but explained its reasons for applying the aggravated term. It set forth numerous factors that it properly found in support of the aggravated term. Thus, even if defense counsel had objected to the sentence, it is not reasonably probable that the court would have sustained his objection.
Similarly, defendant cannot demonstrate any prejudice regarding the court's imposition of a consecutive sentence. California Rules of Court, rule 4.425 sets forth the "[c]riteria affecting the decision to impose consecutive rather than concurrent sentences[.]" Under this rule, the court considers the facts relating to the crimes, "including whether or not: [¶] (1) The crimes and their objectives were predominantly 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." (Cal. Rules of Court, rule 4.425(a).) The court also considers "[a]ny circumstances in aggravation or mitigation" except "(1) [a] fact used to impose the upper term[,]" "(2) [a] fact used to otherwise enhance the defendant's prison sentence[,]" and "(3) [a] fact that is an element of the crime[.]" (Cal. Rules of Court, rule 4.425(b).)
In the present case, the trial court noted that there was no factor in mitigation. Additionally, the crime of carrying ammunition was not related to the conviction of assault with force likely to cause great bodily injury. Defendant claims that the ammunition offense was closely related in both timing and intent to the underlying count. We disagree. Defendant did not use the ammunition when he beat the victim, and the carrying of ammunition was not related to the assault of the victim. The evidence showed that defendant was not the person who had shot a gun during the course of the assault. Thus, the record supported a finding that the possession of ammunition by an ex-felon and the assault in the alley were separate crimes. It is therefore not reasonably probable that the lower court would have imposed a concurrent rather than a consecutive sentence had defense counsel objected to the sentence at trial.
Defendant has failed to demonstrate any prejudice as a result of his trial counsel's failing to object to the sentence and therefore we reject his claim of ineffective assistance of trial counsel.
DISPOSITION
The judgment is affirmed.
Lambden, J. We concur: Kline, P.J. Haerle, J.