Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD202254, Larrie R. Brainard, Judge.
McDONALD, J.
A jury convicted Kevin Sweet of eight counts of using the personal identifying information of another (Pen. Code, § 530.5, subd. (a), counts 1, 4, 7, 10, 11, 14, 17, & 20), eight counts of grand theft by fraudulent use of an access card or account information (§ 484g, subd. (a), counts 2, 5, 8, 12, 13, 15, 18, & 21), six counts of receiving stolen property (§ 496, subd. (a), counts 3, 6, 9, 16, 19, & 22), and one count of cultivating marijuana (Health & Saf. Code, § 11358, count 23). The trial court sentenced Sweet to six years eight months in prison. The sentence is composed of two years for count 1 and consecutive eight-month terms for counts 4, 7, 10, 14, 17, 20, and 23. The trial court stayed the execution of the sentences imposed for the remaining counts pursuant to section 654. On appeal, Sweet contends the sentences on counts 4, 7, 10, 14, 17, and 20 should run concurrently rather than consecutively with the sentence on count 1.
All statutory references are to the Penal Code unless otherwise specified.
FACTS
In 2006 Sweet lived in unit 15 of a Helix Street apartment complex. Nicole Menefee lived in unit 16. Majell Hayden lived at a 63rd Street address, but often visited the Helix Street complex.
Count 1 was charged based on the following facts. On August 17, 2006, a man who identified himself as Keith Stamt used the credit card number of Susanne Kersey to purchase two fishing reels totaling $737.98 from GoFishin.com. The equipment was shipped to unit 16, Menefee's address. At some point, Sweet told Menefee he was expecting a package to be delivered to her apartment. Susanne Kersey did not authorize anyone to purchase these items with her credit card. On August 18, 2006, United Parcel Service (UPS) left the equipment at the front door of unit 16. The next day, Sweet sold similar fishing equipment to the Lemon Grove Pawnbrokers pawnshop.
Count 4 was charged based on the following facts. On August 24, 2006, a person who identified himself as Mr. Rossini used the credit card number of Rachelle Rossini to purchase $2,813.69 worth of fishing equipment. Rossini had the equipment shipped to unit 16 of the Helix Street complex. Rossini gave GoFishin.com a telephone number later found to be the number of a cellular telephone found in Sweet's bedroom, and assumed to be his. GoFishin.com included free t-shirts with the company's logo in this order. A few days later, Sweet sold similar fishing equipment to the Lemon Grove pawnshop.
Count 7 was charged based on the following facts. On August 28, 2006, a person claiming to be Mr. Rossini called GoFishin.com and used Rachelle Rossini's credit card information to purchase fishing equipment in the amount of $5,173.89. GoFishin.com shipped the equipment to unit 16 of the Helix Street complex. The day the equipment arrived, Sweet sold similar items to Lemon Grove Pawnbrokers.
Count 10 was charged based on the following facts. On August 31, 2006, a person claiming to be Mr. Rossini again called GoFishin.com and used Rossini's credit card number to order equipment in the amount of $6,223.86. This time, the owner of GoFishin.com telephoned the credit card company and learned the cardholder had not authorized the charge. The owner called the person claiming to be Mr. Rossini at the telephone number the person gave him, later found to be Sweet's telephone number. The owner told him the charge had been declined. The man on the telephone then offered GoFishin.com a different credit card number under the name of Janice Hairrison. After this card was declined, the caller said he would send a money order but never did.
Count 14 was charged based on the following facts. On September 7, 2006, a person identifying himself as Thomas Smith called Cast Away Lakes and purchased fishing reels in the amount of $1,497.77. The man claiming to be Smith gave Cast Away Lakes what was later found to be Sweet's telephone number. Prior to the man's order, a woman identifying herself as Janice Alfieri called Cast Away Lakes, provided her credit card number, and told Cast Away Lakes she gave Thomas Smith permission to use her card. Cast Away Lakes shipped the merchandise to the 63rd Street address where Majell Hayden lived. Hayden later sold similar fishing equipment to the Family Loan Center accompanied by a man who negotiated the price of the items. The Family Loan Center pawnbroker identified Sweet during trial as the man who accompanied Hayden to the Center.
Count 17 was charged based on the following facts. On September 11, 2006, a woman claiming to be Janice Alfieri called Cast Away Lakes and used Alfieri's credit card number to purchase fishing equipment in the amount $3,700.90. The woman gave Cast Away Lakes Sweet's cellular phone number. The woman requested Cast Away Lakes ship the items to Martha King at Hayden's address. The day UPS delivered the first shipment, Hayden sold similar equipment to the Family Loan Center. UPS could not deliver the second shipment to the 63rd Street address and it was picked up at the UPS facility by a woman who signed her name as Martha King. After UPS could not deliver this shipment, a man claiming to be Thomas Smith called Cast Away Lakes and changed the shipping address to the Helix Street address, unit 15, which was Sweet's unit. The third shipment was delivered to Sweet's address on September 15, 2006. Sweet sold the remaining equipment to the Lemon Grove Pawnshop the same day.
Count 20 was charged based on the following facts. On September 20, 2006, a man claiming to be Smith called Cast Away Lakes and purchased fishing reels totaling $3,368.76 using the credit card information of Laura Ameen. The reels were delivered on September 21, 2006, to unit 16 of the Helix Street address, where Menefee lived. That same day, Sweet sold fishing reels to the Lemon Grove pawnshop and told the pawnbroker he lived at unit 16 of the Helix Street address.
Investigators served a search warrant on Sweet's apartment and found marijuana plants, Sweet's cellular telephone and a GoFishin.com t-shirt. Investigators also found a GoFishin.com business card in Sweet's wallet.
PROCEDURAL HISTORY
At trial, the jury found Sweet guilty on all counts. Sweet's counsel submitted a statement in mitigation and in support of probation. In the statement, Sweet's counsel requested the trial court grant probation or, alternatively, impose a prison sentence of no greater than two years on count 1 and run the other sentences concurrently.
At the sentencing hearing, the court addressed Sweet. The court reminded Sweet that he had stolen "time after time," broken into a house, and stolen a gun. The court noted Sweet's most recent criminal incident, in which he was connected with a forgery scam. The court also observed that the convictions here involved over $25,000 in losses. The court stated Sweet was not an "innocent pawn" in the fishing equipment scheme. The court sentenced Sweet to prison for two years on count 1 and for consecutive terms of eight months (one-third the midterm) on counts 4, 7, 10, 14, 17 and 20 for a total of six years eight months. The trial court stayed execution of the sentences for the remaining counts (§ 654).
DISCUSSION
Sweet contends the trial court erred by not giving specific reasons for imposing consecutive rather than concurrent sentences. Sweet claims that concurrent sentencing was proper for counts 4, 7, 10, 14, 17, and 20 because the crimes involved the execution of one plan over a short period of time by a single group of individuals against certain victims. Sweet claims the crimes were committed so closely in time and place to constitute a single period of aberrant behavior. Sweet argues his trial counsel did not waive the issue by failing to object because Sweet's counsel argued for concurrent sentencing in his statement of mitigation. Alternatively, he argues that if this court holds his counsel failed to object, the waiver constituted ineffective assistance of counsel.
A
The waiver doctrine applies to claims involving the trial court's failure to state reasons for a discretionary sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 353.) Counsel has the responsibility of "understanding, advocating, and clarifying permissible sentencing choices" because "[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Ibid.) For that reason, counsel's objections to a sentence must be specific to provide the trial court a meaningful opportunity to correct errors. (People v. de Soto (1978) 54 Cal.App.4th 1, 9).
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's assistance fell below an objective standard and thus prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 686.) Counsel's deficient performance prejudices the defendant if it is reasonably probable that a more favorable outcome would have resulted had counsel's performance met the standard. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) We may resolve a claim of ineffective assistance of counsel on the ground of lack of prejudice. (Ibid.) In this case, we need not decide whether the statement in mitigation sufficiently objected to consecutive sentencing because we conclude that a failure to object did not prejudice Sweet.
B
A court must explicitly state its reasons for imposing consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(5); People v. Tillotson (2007) 157 Cal.App.4th 517, 545.) Certain facts related to the crime can affect the court's decision to impose concurrent sentences. (See rule 4.425(a).) For example, the court may base its decision to impose consecutive or concurrent sentences on "whether or not [¶] . . . [¶] . . . 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).) For example, in People v. Martin (1992) 3 Cal.App.4th 482, the defendant stole a car, drove to a nearby town to pick up a friend, and returned to break into his mother's home, all in one morning. (Id. at p. 485.) Although the defendant committed the crimes in one morning, the crimes did not constitute a single period of aberrant behavior because the defendant drove to another town before committing the second crime. (Id. at pp. 489-490.)
All rule references are to the California Rules of Court.
Also, circumstances in aggravation can affect the court's decision to impose consecutive rather than concurrent sentences. (Rule 4.425(b).) Circumstances in aggravation include when "the defendant's prior convictions as an adult . . . are numerous or of increasing seriousness" (rule 4.421(b)(2)); when the crime involves a taking of "great monetary value" (rule 4.421(a)(9)); and when the manner in which the defendant carried out the crime suggests sophistication. (Rule 4.421(a)(8)). The court need only list a single aggravating factor as a reason to impose consecutive sentences. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Here, the court referenced three aggravating factors. First, the court listed Sweet's numerous prior convictions. Second, the court noted the crimes before the court involved over $25,000, a loss of great monetary value. Third, the court observed Sweet was not an "innocent pawn" in this scheme, implying the manner in which Sweet carried out the crimes showed a level of sophistication. The court need only state one aggravating factor, and the trial court here listed three. The court did not abuse its discretion by sentencing Sweet to consecutive sentences on counts 4, 7, 10, 14, 17, and 20. Thus, even if Sweet's counsel did not properly object to the consecutive sentences, this failure did not prejudice Sweet.
Sweet contends, however, that concurrent sentences were proper because the crimes were committed in a single period of aberrant behavior. Sweet contends he committed the crimes within one month using the same methods with the same group of people. Sweet further argues that the items were delivered to a specific group of people and sold to only two pawn shops. Lastly, Sweet asserts that because some counts involved the same credit card and shipping address and occurred over a period of days, these counts constituted a single period of aberrant behavior. The court may base its decision to impose a concurrent sentence on either the fact that the crimes occurred at different times and separate occasions or the existence of circumstances in aggravation. (Rule 4.425.) Here, the court listed sufficient reasons for imposing consecutive sentencing when it listed only circumstances in aggravation.
Furthermore, the record shows Sweet did commit these crimes at different times and separate places. In People v. Martin, supra, 3 Cal.App.4th at page 485, the defendant's crimes occurred within hours of each other but did not constitute a single period of aberrant behavior. Here, over a span of weeks, Sweet purchased fishing equipment from two different retailers and sold the equipment to two different pawnshops. Thus, consecutive sentencing would have been proper here even absent the circumstances in aggravation listed by the court.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.