Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No.BA255318, Richard B. Romero, Judge.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J., CROSKEY, J.
Sytha Tha Seang appeals from the judgment entered following his convictions by jury on count 1 – shooting at an occupied motor vehicle (Pen. Code, § 246), seven counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); counts 2 through 8 – with personal use of a firearm (Pen. Code, § 12022.5), seven counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187; counts 9 through 15 – with personal discharge of a firearm (Pen. Code, § 12022.53, subds. (c) & (e)(1)); count 16 – shooting at an unoccupied motor vehicle (Pen. Code, § 247, subd. (b)); count 17 – shooting from a motor vehicle (Pen. Code, § 12034, subd. (c)); and count 18 – shooting with gross negligence (Pen. Code, § 246.3), with findings as to each offense that appellant committed it for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court sentenced appellant to prison for 60 years plus seven consecutive terms of life with the possibility of parole, with a minimum parole eligibility term of 15 years as to each of counts 9 through 15. Appellant challenges the sufficiency of the evidence as to counts 9 through 15, and claims various trial and sentencing errors occurred. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence as to counts 1 through 15, established that on November 12, 2004, Monica Rael was driving a truck near 10th and Gaviota in Los Angeles County. Tatiana Lopez and Erica Luna (Erica) were also in the passenger seats of the truck.
The pertinent facts as to counts 16 through 18 are as follows. On December 15, 2004, appellant, in a motor vehicle, shot at an unoccupied truck located in the 2300 block of East 15th Street in Los Angeles. At sentencing, the trial court dismissed counts 16 through 18 on the People’s motion. To the extent appellant’s contentions seek reversal of those convictions, the contentions are moot.
Monica’s children, Anastasia and Albert, were in the back seat. Luna’s children, Brandon and Michele, were also in the back seat. The truck belonged to Juan Luna, Erica’s husband. Juan was a member of the Eastside Longos gang and was one of its “shot-caller[s].”
According to Christopher Zahedi, discussed below, a shot-caller was a person who started a gang and was its leader.
Rael drove in a driveway to speak with someone. Lopez testified that Lopez looked to her right and saw two people exiting an alley. She looked later and saw the two going towards a van. Erica later told Lopez to duck, and Erica screamed that there were kids. Everyone in the car ducked. At some point, Lopez heard gunshots. Glass fell on Michele and the children were screaming. According to Lopez, one of the shooters was about six feet from the truck. The other was in the street. She thought the occupants of the truck were going to die. Lopez could not identify anyone at the time because it was too dark. However, she testified she knew “[they] were like, Asian or something.” A rear window of the truck was shot out.
Erica testified she saw someone come from behind a van. She testified she turned around and saw a male pointing a gun at “us.” She further testified the gunman was pointing the gun “at the passenger’s area of the truck.” Erica’s window was down. She said “Don’t shoot. Don’t shoot. We have kids. Don’t shoot.” The gunman then began shooting. Erica also testified, “They just started shooting.”
Erica told everyone to duck and pushed Lopez down. Erica put her body on top of Lopez, who was pregnant. Michele was afraid and tried to jump over the seat, so Erica pushed her down. Erica testified that when she was trying to push Michele down, Erica saw another person trying to come around to the driver’s side. Erica told Monica to drive. Erica testified Monica put the car in reverse and almost hit one of the men outside the truck. That person was going behind the truck to the driver’s side, and Erica could see only the top of his head. Erica could not see whether he was armed.
Long Beach Police Officer Javier Sepulveda responded to a call regarding the shooting. He saw several bullet holes in the truck. At 9:17 p.m. on November 12, 2004, Long Beach Police Officer Christopher Ignacio received a call about the shooting and later went to the shooting scene. He found there six .45-caliber casings and two expended rounds. Ignacio testified there were three bullet holes in the “rear driver’s side of the window.” About 9:35 p.m., Long Beach Police Officer Jeannie Villanueva responded to a call about the shooting. She saw two bullet holes on the rear passenger door of the truck.
Long Beach Police Detective Joe Pirooz, a gang expert, testified as follows. Pirooz was assigned to the Asian Gang Task Force and was familiar with the Asian Boys gang. In 2004, Pirooz met Christopher Zahedi, who became a confidential source of information on the Asian Boys. Zahedi contacted Pirooz weekly.
Zahedi testified he had known appellant since perhaps 1996. According to Zahedi, appellant was a member of the Asian Boys gang. On December 31, 2004, Zahedi was arrested for an unrelated matter. He had the arresting officers contact Pirooz. Zahedi later told Pirooz that Pirooz could find appellant and another person at a residence on Damon Street. Zahedi also told Pirooz that, inter alia, a nine-millimeter gun and a .45-caliber gun would be in the residence. Zahedi testified that he was made aware of a shooting that had occurred in early November in the area of 10th and Gaviota. Regarding that shooting, appellant and a second person admitted they had shot up a black truck. Appellant and the second person said they had believed that they had shot “some shot-caller from Longo.”
Police went to the Damon Street residence and saw appellant and another person standing on its front porch. An officer identified himself, and appellant and the second person fled into the residence. Police entered it, arrested appellant, and found in the residence, inter alia, a loaded .45-caliber gun and a loaded nine-millimeter gun.
Long Beach Detective Richard Conant interviewed appellant. He testified that, during the interview, appellant admitted personal responsibility for two shootings. During one shooting, appellant shot at a male Hispanic on Junipero. Conant testified that, as to the other shooting, appellant “indicated that he had shot at a car or shot into a car on 10th Street between Rose and Gaviota.”
Ballistics evidence indicated that the .45-caliber gun found in the Damon Street residence was fired during the November 12, 2004, shootings, and the nine-millimeter gun was fired during the December 15, 2004, shootings. Appellant presented no defense witnesses. We will present additional evidence where pertinent below.
CONTENTIONS
Appellant contends (1) Conant obtained appellant’s statement in violation of Miranda v. Arizona and the trial court erred by receiving it in evidence; (2) there was insufficient evidence of intent to kill as to counts 9 through 15; (3) the trial court erred by failing to give accomplice and in-custody informant instructions regarding Zahedi; (4) the convictions must be reversed because the jury deliberated for less than two hours after an alternate juror was replaced; and (5) imposition of consecutive sentences on counts 9 through 15 was error.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
DISCUSSION
1. Appellant’s Miranda Rights Were Not Violated.
a. Pertinent Facts.
(1) Conant’s Testimony.
During an Evidence Code section 402 admissibility hearing, Conant testified during direct examination as follows. Police arrested appellant sometime after midnight on December 31, 2004. At 4:30 a.m., Conant interviewed appellant in an interview room at the police station in the presence of Detective Roger Zottneck. Conant testified that he “read [appellant] the Miranda rights per our departmental advisement form.” Appellant appeared to understand each of those rights. He initially waived his rights and agreed to speak to Conant.
The form is not part of the record before this court.
During the interview, appellant asked Conant to show him two recovered guns. Conant showed him the guns. Appellant subsequently gave Conant a statement regarding appellant’s involvement in two shootings.
Appellant asked Conant if other people were still present in the police station. Conant said there were, and appellant asked if he could see them. Conant escorted appellant out of the interview room to permit him to see other people in the office. One of the people was Hat Hor, and appellant looked at him. Appellant shouted something in Cambodian, and Hor replied in Cambodian. Conant escorted appellant back into the interview room and closed its door. Conant testified appellant told Conant that “we were trying to trick him,” and appellant knew how the game was played.
Conant and appellant continued to talk for a few minutes before the interview ended. At that point, appellant refused to sign the Miranda form, which had been there for some time. Appellant told Conant that it would be appellant’s word against Conant’s word and appellant knew how the game was played.
During cross-examination, Conant testified that appellant was asked if he understood his rights which had been explained to him and that appellant replied yes. Conant also testified, “We started talking. He waived his rights at that point. We continued talking.” Conant acknowledged during cross-examination that, based on his police report, he advised appellant of his rights verbally, and appellant waived them. Conant also acknowledged that he had not had the Miranda form at the beginning of the interview as he had indicated in his earlier testimony, and that the interview already had been underway when he asked Zottneck to get the form. Conant further acknowledged he did not have an independent recollection as to how he had advised appellant of his Miranda rights.
(2) Zottneck’s Testimony.
Zottneck testified at the hearing as follows. Zottneck was present at the above interview. Conant verbally advised appellant of his Miranda rights. The following occurred: “Q . . . Did he verbally understand his rights and agree to speak to yourself and Detective Conant? [¶] A Yes, he said he did.” (Sic.) At some point during the interview, Conant had Zottneck get a form. During cross-examination, Zottneck testified he did not believe Conant read from anything when Conant advised appellant of his rights. According to Zottneck, Conant had advised many people of their rights during Conant’s career.
(3) Conant’s Additional Testimony.
The prosecutor, without objection, recalled Conant as a witness and he testified as follows. Conant had been a police officer for 18 1/2 years, and he could advise Miranda rights from memory. Conant testified “I would advise them they have the right to remain silent. Anything they say may and can be used against them in court. They have the right to have an attorney present. They have a right to have an attorney present before any questioning if they so desire. If they can’t afford to hire one, one would be appointed to represent them free of charge. And I would ask them if they understood those rights.”
(4) The Court’s Ruling.
Appellant argued his statements should be excluded because the People had not shown that he had been advised of his rights. Appellant also argued that the People had not shown how appellant had been advised of his rights.
The court discussed the testimony of Conant and Zottneck, and later stated, “I credit Detective Zottneck’s testimony in that he says that Conant orally advised the defendant of his rights, and Detective Conant testified here of Miranda rights without reading them from a card or from a form. So I believe the evidence establishes that Detective Conant is wrong in saying that he read them from a card or from a form, that he orally advised the defendant from memory and demonstrated in court that it was an [sic] recitation of those rights. [¶] I also understand that Detective Conant . . . gave different accounts of the chronology of the alleged confession of the defendant, . . . the way he reports the chronology is not consistent. I’m not discrediting Detective Conant. I am crediting Detective Zottneck’s account of what occurred, that it was an explicit waiver. The court also allows an implicit waiver where the defendant is advised of his rights and then chooses to speak. [¶] In this case, also, as [the prosecutor] points out, the defendant’s will was not overborne. He is in a minor way calling the shots. He is asking to see things, see people, and the detectives cooperate with that.”
The court concluded no Miranda violation occurred and appellant’s statement was voluntary. The court denied appellant’s motion to exclude his statement.
b. Analysis.
“In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, the scope of our review is well established. ‘We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.’ [Citations.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.) Nonetheless, when making said independent determination, we give great weight to the considered conclusions of a trial court which has reviewed the same evidence. (People v. Whitson (1998) 17 Cal.4th 229, 248.)
In the present case, Conant effectively testified during direct examination that he advised appellant of his Miranda rights. Appellant appeared to understand each of those rights, and he initially waived them and agreed to speak to Conant. However, appellant’s cross-examination of Conant based on his report revealed that the interview already had been underway before Conant asked Zottneck to get the Miranda form.
Nonetheless, even Conant’s report reflected the fact of the prior advisement. The report indicated Conant previously had verbally advised appellant of his rights, and that he had waived them. After Conant acknowledged during cross-examination that he had not had the form at the beginning of the interview, Conant again testified that appellant was advised of, and waived, his rights. Conant similarly testified during redirect examination and recross-examination.
Fairly read, Conant’s testimony after he was recalled as a witness was to the effect that he was a veteran police officer who had given Miranda advisements more times than he could remember, and he could give such an advisement from memory. He testified concerning the contents of the Miranda advisement he would habitually give, and there is no dispute that such an advisement, when given, is valid.
Evidence Code section 1105, provides, “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”
Zottneck effectively testified that Conant verbally advised appellant of his Miranda rights from memory only, appellant verbally indicated he understood his rights, and appellant agreed to speak to Conant and Zottneck. Zottneck also indicated that the contents of Conant’s advisement were the same as the contents of the advisement on the admonishment card, and Conant had given many advisements in the past.
The trial court never expressly discredited Conant’s testimony on the fact of the advisement. The court expressly credited Zottneck’s testimony that Conant verbally advised appellant of his rights, and the court accepted Conant’s habit testimony concerning what the content of that advisement would be. The court acknowledged Conant had given different accounts concerning the chronology of appellant’s statements but, even as to that issue, the trial court expressly declined to discredit Conant. We conclude there was substantial evidence that Conant advised appellant of his Miranda rights, and that the advisement was valid.
Appellant argues his Miranda waiver was invalid because he was not advised of his Miranda rights and did not sign a written waiver. However, we have concluded above that the advisement was proper. Moreover, the record reflects appellant expressly waived his rights. For example, Zottneck so testified. Even if appellant did not expressly waive them, he impliedly waived them when, having been advised of his rights, he indicated he understood them and then made statements to Conant. (Cf. People v. Whitson, supra, 17 Cal.4th at pp. 247-248.) Further, a valid Miranda waiver need not be written. (Cf. People v. Griffin (1971) 18 Cal.App.3d 864, 871; see People v. Whitson, supra, 17 Cal.4th at p. 246.) There was ample evidence that appellant’s waiver of his Miranda rights was knowing and voluntary. The trial court did not err in violation of Miranda by receiving appellant’s statements in evidence.
2. Sufficient Evidence Supported Appellant’s Attempted Murder Convictions.
Appellant claims there is insufficient evidence that he committed attempted murder as to counts 9 through 15 because there is insufficient evidence of intent to kill. We disagree.
a. Pertinent Facts.
We have set forth pertinent facts in our Factual Summary. Moreover, Zahedi testified as follows. The Asian Boys gang and the Longo gang were rival gangs. In 2004, the two gangs were having shootouts and street wars between them.
Zahedi had suffered convictions for burglary, theft, and selling drugs, and, at the time of his testimony, was in custody for selling drugs.
b. Analysis.
Whether a person harbored intent to kill is a question for the trier of fact (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) “Evidence of a defendant’s intent ‘must usually be derived from all the circumstances of the attempt, including the defendant’s actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range “in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . .” [Citation.]’ [Fn. Omitted.]” (People v. Villegas (2001) 92 Cal App.4th 1217, 1225.)
There is no dispute that appellant shot at a truck containing seven persons. Indeed, he does not challenge the sufficiency of the evidence as to counts 2 through 8 that he personally used a semiautomatic firearm to feloniously assault the seven occupants. He claims only that he lacked intent to kill. He suggests he intended only to shoot Juan, and it was too dark for the assailants to see the truck’s occupants.
However, Lopez saw two people exit an alley and later approach a van. One of the shooters was about six feet from the truck and the other was in the street. Erica too saw someone come from behind a van. She testified a male pointed a gun at the passenger area of the truck. She repeatedly said “don’t shoot” and said “we have kids,” effectively announcing there were multiple persons in the car who had multiple children in the car. There was no evidence the assailants then paused to consider that they might shoot at the wrong person(s). The assailants simply began shooting.
Even after the shooting began, one of the assailants tried to come around to the driver’s side of the truck, and Monica almost hit him when she drove away. There was evidence that multiple high-caliber bullets hit the truck, and there was ample evidence that at least some penetrated the passenger’s compartment. Lopez thought the occupants were going to die.
Although Lopez indicated it was too dark for her to identify the assailants, and Zahedi testified the assailants thought they were shooting Juan, the jury reasonably could have concluded that the area was sufficiently well-lit for Lopez and Erica to see the events to which they testified, including the fact that there were persons, the assailants, near the truck. The jury also reasonably could have concluded that, under the circumstances, if Lopez and Erica could see the assailants, the assailants could see Lopez, Erica, and the other occupants of the truck.
Moreover, the Asian Boys and Longo gangs were at war. The jury reasonably could have concluded that even if the assailants at some point believed Juan was in the truck and intended to shoot him, they ultimately approached the truck and intended to shoot and kill everyone in it. Appellant fired towards the seven occupants at close range, and in a manner that could have inflicted mortal wounds had the bullets been on target. We reject appellant’s suggestion that he intended only to scare Juan. Again, there is no dispute appellant personally used a firearm to feloniously assault the seven occupants. We note the jury concluded the attempted murders were premeditated. There was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed the attempted murders at issue in counts 9 through 15, including sufficient evidence that appellant had the requisite intent to kill as to each victim.
3. The Trial Court Did Not Err by Refusing to Give Accomplice and In-Custody Informant Instructions.
a. Pertinent Facts.
We have set forth pertinent facts concerning Zahedi in our Factual Summary. Moreover, Pirooz testified that Zahedi had told Pirooz that Zahedi had been working for other police departments before Zahedi and Pirooz had met.
In November 2004, Zahedi was present at an Asian Boys gang meeting held in a park. Gang members discussed killing certain police officers. On December 31, 2004, Zahedi was arrested for a drug-related offense. Police reports indicated he had been arrested for stealing sunglasses, and it was alleged that police found drugs, a scale, and a .380-caliber gun in his car. Zahedi indicated to the arresting officer that Zahedi had been cooperating with Pirooz. Zahedi later spoke with Pirooz and told him about the gang’s plan to kill officers.
As mentioned, Zahedi told Pirooz that fellow gang members admitted having committed the November 12, 2004, and December 15, 2004, shootings, and appellant admitted having been the shooter in the November 12, 2004, shootings. The entire Asian Boys gang wanted Zahedi dead. Zahedi was in prison, in protective custody, at the time of the trial.
During discussions concerning jury instructions, appellant indicated there was an issue as to whether Zahedi was an accomplice to the present offenses, and appellant wanted the court to instruct the jury that the testimony of an accomplice must be corroborated. After argument on the issue, the trial court stated, “I don’t believe it’s established under the law that he is an accomplice for giving this instruction. That’s denied.”
b. Analysis.
Appellant claims there was evidence that Zahedi was an accomplice to the present offenses; therefore, the trial court erred by refusing to give accomplice instructions, including an instruction indicating that the testimony of an accomplice must be corroborated. We disagree.
A “person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense[;] (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) We have recited the pertinent facts. There was no substantial evidence that Zahedi had the requisite mental state, or engaged in the requisite conduct, specified in the second and third above enumerated elements, respectively. A trial court is under no duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga (1999) 21 Cal.4th 935, 944; People v. Flannel (1979) 25 Cal.3d 668, 684.) The trial court did not err by refusing to give accomplice instructions. Nor did that refusal violate appellant’s constitutional rights.
Moreover, “A trial court’s failure to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there is sufficient corroborating evidence in the record. [Citation.] ‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 370; see People v. Felton (2004) 122 Cal.App.4th 260, 271-272.)
In the present case, appellant admitted to Conant that appellant had participated in the November 12, 2004, shootings. Moreover, on the date of appellant’s arrest, he ran inside the Damon Street residence in which police later found a .45-caliber firearm which ballistics evidence showed had been fired during the November 12, 2004, shootings. These facts were sufficiently corroborative. The trial court did not err by failing to give an accomplice instruction.
Appellant also claims the trial court erred by not instructing that Zahedi was an in-custody informant. That instruction states, in relevant part, “The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating this testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard this testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in this case. [¶] [“In-custody informant” means a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by a defendant while both the defendant and the informant are held within a correctional institution.]” (Italics added; see Pen. Code, § 1127a, subds. (a) & (b).)
The trial court did not err by failing to give the instruction since appellant did not request it. (People v. Horning (2004) 34 Cal.4th 871, 909.) Moreover, no substantial evidence was presented that Zahedi’s testimony was based on statements made by appellant while the two of them were held within a correctional institution. Again, the trial court has no duty to give an instruction unsupported by substantial evidence. (Cf. People v. Tufunga, supra, 21 Cal.4th at p. 944; People v. Flannel, supra, 25 Cal.3d at p. 684.) The court’s failure to give the instruction did not violate appellant’s constitutional rights.
4. The Length of the Jury’s Deliberations Does Not Compel Reversal of the Judgment.
a. Pertinent Facts.
At 3:24 p.m. on May 30, 2006, the jury retired to commence deliberations. At 4:00 p.m. jury deliberations ended for the day. At 9:30 a.m. on May 31, 2006, the jury resumed deliberations. At 10:55 a.m., the court discussed with counsel three juror requests and, from 11:25 a.m. to 11:30 a.m., a readback of testimony occurred. A recess occurred from noon to 1:30 p.m. From 1:50 p.m. to 2:30 p.m., a readback occurred. At 4:00 p.m., jury deliberations ended for the day.
At 9:30 a.m. on June 1, 2006, the jury resumed deliberations. At 9:55 a.m., the court conducted hearings after two jurors indicated that they feared for their safety. Following the hearings, a juror was excused and an alternate juror was impaneled as a replacement. At 10:42 a.m., the court instructed the jury to begin deliberations anew and, at 10:44 a.m., the jury retired for that purpose. A recess occurred from noon to 1:30 p.m. At 1:52 p.m., the jury announced that they had reached a verdict.
The court gave the following modified instruction (Judicial Council of Cal. Crim Jury Instns. (2006), CALCRIM No.3575) to the jury: “‘One of your fellow jurors has been excused and an alternate juror has been selected to join the jury. [¶] Do not consider this substitution for any purpose. [¶] The alternate juror must participate fully in the deliberations that lead to any verdict. The People and the defendant have the right to a verdict reached only after full participation of the jurors whose votes determine that verdict. This right will only be assured if you begin your deliberations again from the beginning. Therefore, you must set aside and disregard all past deliberations and begin your deliberations all over again, including selecting a foreperson. Each of you must disregard the earlier deliberations and decide the case as if those earlier deliberations had not taken place. [¶] Now please return to the jury room and start your deliberations from the beginning.’”
b. Analysis.
Appellant claims the fact that the jury deliberated for less than two hours after they began deliberations anew compels reversal of the judgment. We disagree. The trial court did everything it was supposed to do when it instructed the jury to begin deliberations anew. We have set forth the instruction. The jury is presumed to have understood and followed it. (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Dorsey (1995) 34 Cal.App.4th 694, 704.) Appellant makes no claim of juror misconduct. His present claim is speculative and does not warrant reversal of the judgment. (See People v. Maury (2003) 30 Cal.4th 342, 436-437.)
We note that appellant made a motion for a new trial on the ground, inter alia, that the jury deliberated too briefly for them to have complied with the court’s instruction to deliberate anew. The prosecutor commented his closing argument had been that there were really only three issues for the jury: (1) was appellant at the first shooting, (2) was he at the second shooting, and (3) was he the shooter. The court denied the motion, commenting the jury’s deliberations were brief but the court believed they were adequate.
5. Imposition of Consecutive Sentences Was Proper.
a. Pertinent Facts.
The probation report reflects that, as a juvenile, appellant suffered a sustained petition in 1997 for burglary, a 1998 “convict[ion]” for exhibiting a deadly weapon, and a 1999 sustained petition for unauthorized taking of vehicle. As an adult, in 2002, he was convicted of escape from the California Youth Authority and sentenced to prison.
During sentencing in the present case, the trial court stated, “The principal sentencing counts now are 9 through 15, and here, because there are multiple victims, there is planning, deliberation, defendant acted in concert with an ambush, I believe consecutive sentences are appropriate.” Appellant did not object that the trial court had relied upon an improper reason(s) to impose consecutive sentences.
b. Analysis.
Appellant suggests the trial court erred by imposing consecutive sentences as to counts 9 through 15 because (1) the trial court impermissibly relied upon on an element of the crimes, namely, premeditation and deliberation, when the trial court relied upon appellant’s planning and deliberation to impose consecutive sentences, and (2) no proper factor supporting consecutive sentences exists under California Rules of Court, rule 4.425(a), because there was one act of violence. Appellant’s claim is unavailing. He waived the issue by failing to object below on the grounds now urged. (Cf. People v. Scott (1994) 9 Cal.4th 331, 335.)
California Rules of Court, rule 4.425, provides, “Criteria affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) [Criteria relating to crimes] 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. [¶] (b) [Other criteria and limitations] Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, 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 shall not be used to impose consecutive sentences.”
Even if the trial court incorrectly relied on planning and deliberation to impose consecutive sentences, for the reasons discussed below, there is no need to vacate appellant’s sentence.
Although appellant claims there was no factor under California Rules of Court, rule 4.425(a) available to support consecutive sentences, we note that rule 4.425(b) states, in relevant part, “Any circumstances in aggravation . . . may be considered in deciding whether to impose consecutive rather than concurrent sentences . . . .” Rule 4.408(a), provides, “The enumeration in these rules of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made. Any such additional criteria must be stated on the record by the sentencing judge.”
The trial court relied on the factor that there were multiple victims to impose consecutive sentences. This was proper, since the trial court was entitled to consider aggravating factors when deciding to impose consecutive sentences, and the fact that there were multiple victims was a criterion reasonably related to that decision. (Cf. People v. Calhoun (2007) 40 Cal.4th 398, 405-408; Cal. Rules of Court, rules 4.408(a), 4.425(b).) For similar reasons, the trial court’s reliance on the factor that appellant acted in concert was appropriate.
Moreover, since the trial court was entitled to consider aggravating factors (Cal. Rules of Court, rule 4.425(b)), we note appellant’s prior convictions as an adult or sustained petitions in juvenile proceedings were numerous and of increasing seriousness (People v. Searle (1989) 213 Cal.App.3d 1091, 1098; Cal. Rules of Court, rule 4.421(b)(2)) and he had served a prior prison term (rule 4.421(b)(3)). These too were available aggravating factors. In short, even if the trial court erred as urged, it is not reasonably probable that a different sentence would have occurred absent the alleged error, and there is no need to vacate appellant’s sentence. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; People v. Dreas (1984) 153 Cal.App.3d 623, 636-637.)
DISPOSITION
The judgment is affirmed.