Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH46167
Banke, J.
A jury convicted defendant Tavake Uasike of two counts of robbery with two enhancements for use of a firearm pursuant to Penal Code section 12022.53, subdivision (b). In a separate case, defendant pleaded guilty to attempted murder with an enhancement for intentional infliction of great bodily injury with a firearm. In accordance with the terms of the plea, the court imposed concurrent sentences in the robbery and attempted murder cases. In the robbery case, the court imposed consecutive midterm sentences. Defendant claims ineffective assistance of counsel with respect to sentencing on the robberies, complaining his counsel did not argue for concurrent sentences. We affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Robberies
On October 3, 2008, Juan Valencia and Eduardo Doe were approached by defendant and another man. Defendant pointed a handgun with a silencer at Valencia and Doe. Doe testified the men took Doe’s cell phone, money, and a small stereo television and searched Valencia’s pockets and took his cell phone, wallet, and $10. Then, defendant and his partner fled.
Valencia and Doe called the police, and gave a description of the man carrying the gun. Doe positively identified defendant. Valencia said defendant’s photo resembled the armed robber.
Attempted Murder
On October 30, 2008, defendant held a gun to the head of a man defendant believed had sold him some “bad drugs” and threatened to shoot him. Defendant hit the man in the eye with the butt of the gun and, when the man tried to escape, shot at him several times hitting him in the hand and arm.
Plea and Sentencing
After a jury convicted defendant of the robberies and found the related gun use enhancements true, defendant pleaded guilty to the attempted murder charges and admitted a firearm enhancement pursuant to section 12022.5, subdivision (a). The terms of the plea included “an agreed disposition of nine years” for the attempted murder and a consecutive term of three years for the enhancement. The plea agreement also specified the aggregate sentence in the attempted murder case would run concurrently with the sentence in the robberies case. In exchange for the plea, the prosecutor moved to dismiss an enhancement allegation pursuant to section 12022.53, subdivision (d), which would have exposed defendant to a consecutive term of 25 years to life.
The probation report for the robberies included defendant’s statement as follows: “I robbed two people in Union City. I wasn’t armed but they just thought I had a gun. They were drug dealers and all I did was take their drugs. I had talked to them on the phone and planned to meet them for a buy. What they did was they sent two kids to sell to me. So I robbed the kids.” The reported value of the property taken was $909.
Defendant’s criminal record included multiple misdemeanor convictions as an adult for battery, fighting in public, and resisting arrest. Many of these offenses, and the robberies and attempted murder, were committed while he was on probation. The report identified the following five factors in aggravation: The crime involved a threat of great bodily harm. (Cal. Rules of Court, rule 4.421(a)(1).) Defendant was armed with a weapon. (Rule 4.421(a)(2).) His prior convictions were numerous. (Rule 4.421(b)(2).) He was on probation when he committed the current offenses, and his prior performance on probation was unsatisfactory. (Rule 4.421(b)(4)-(5).) The probation report identified no mitigating factors.
All further rule references are to the California Rules of Court.
The district attorney cited six aggravating factors relating to the robberies, and four relating to defendant. He asked the court to impose the aggravated term of five years for the first robbery count, with a 10-year consecutive term for the section 12022.53, subdivision (b) enhancement, and a consecutive sentence of one-third the midterm for the second robbery, and one-third the midterm for the second section 12022.53, subdivision (b) enhancement.
With respect to the robberies, the court announced its tentative sentence as follows: “[T]he midterm on count 1 of three years in state prison. There is a ten-year use enhancement... for a total of 13 years on [c]ount 1. I’d be inclined to give him one-third the midterm of one year on [c]ount 2, as well as one-third [the midterm] of the enhancement of three years, four months for a total of 17 years, four months in state prison.”
Defense counsel asked the court to consider a stay of one of the gun use enhancements pursuant to section 654. The court stated: “I would find they were separate uses... because both victims were threatened with the firearm, ” but invited further argument. Defense counsel argued defendant’s use of the firearm against Valencia and Doe did not involve “separate transaction[s]” because Valencia and Doe were together and defendant pointed the gun at both of them at the same time.
The court imposed the sentence it had tentatively announced. In accordance with the terms of the plea, the court then sentenced defendant to the upper term of nine years for the attempted murder and a consecutive three-year enhancement for intentional infliction of great bodily injury with a firearm for a total of 12 years to be served concurrently with the 17 years four months sentence on the robberies and related gun use enhancements.
DISCUSSION
Defendant contends defense counsel rendered ineffective assistance with respect to sentencing on the robbery counts by: (1) failing to argue for concurrent sentences; and (2) failing to object when the court did not state reasons for consecutive sentences.
“[A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.” (People v. Scott (1994) 9 Cal.4th 331, 351.) To establish ineffective assistance of counsel defendant must demonstrate: (1) counsel’s omission fell below the standard of reasonable competence; and (2) it is reasonably probable the result would have been more favorable absent the omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-696; People v. Avena (1996) 13 Cal.4th 394, 418.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.] If the record does not disclose why counsel acted or failed to act in the manner challenged, then, unless counsel was asked for and failed to provide an explanation or there could be no satisfactory explanation, we reject the claim on appeal and affirm the judgment.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 194.)
Failure to Argue for Concurrent Sentences
Defense counsel sought a statutorily unavailable section 654 stay of one of the section 12022.53 enhancements, arguing the gun use related to each robbery count consisted of only a single act involving multiple victims. (See People v. Palacios (2007) 41 Cal.4th 720, 731-732 [section 654 does not apply to section 12022.53 enhancements because the “intent of section 12022.53, subdivision (f) was to punish the use of firearms linked to the commission of applicable crimes, not discrete acts”].) Defendant argues this was incompetent and defense counsel should instead have advanced a similar argument, i.e., that the robberies involved only a single act of violence, as a reason to impose concurrent sentences for the underlying robberies. (Rule 4.425.)
Even if the Legislature had not intended to create a statutory exception to section 654 when it enacted section 12022.53, where as here, the offenses are crimes of violence against “multiple victims” section 654 does not apply. (People v. Oates (2004) 32 Cal.4th 1048, 1063-1064.)
“[T]he presence of separate victims named in separate counts” alone may justify selection of consecutive sentences. (People v. Caesar (2008) 167 Cal.App.4th 1050, 1060-1061, disapproved on another ground in People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 18.) The evidence established defendant used a gun equipped with a silencer to forcibly take property from two separate victims. Defense counsel did argue that the gun use did not involve separate acts because defendant pointed the gun at Valencia and Doe at the same time, so in essence, counsel was advocating for the same view of the crime as defendant urges on appeal. The trial court explicitly rejected this argument, however, when it stated the gun uses were “separate... because both victims were threatened with the firearm.” Since the gun use was factually inextricably linked with the use of force in the robberies, the court’s response to the section 654 argument signaled it would also reject any argument the underlying robberies did not involve separate “acts of violence or threats of violence, ” as a reason to impose concurrent sentences. (Rule 4.425(a)(2).)
Moreover, the court had before it many other reasons to impose consecutive sentences on the robbery counts, not the least of which is that defendant committed attempted murder, less than 30 days after committing the robberies. (See Rules 4.425(b) & 4.21(b)(1); People v. Gonzales (1989) 208 Cal.App.3d 1170, 1173.) The probation report identified five aggravating factors, and none in mitigation. Although defendant’s appellate counsel suggests several mitigating factors trial counsel could have advanced in support of concurrent sentences, counsel had good reason not to because the suggested factors are contrary to the record. For example, defendant suggests trial counsel could have argued defendant “had a minor criminal history, with no prior felony convictions.” Yet, at the time of sentencing for the robberies defendant had pleaded guilty to a very serious felony offense, attempted murder committed less than a month after the robberies. (See People v. Gonzales, supra, 208 Cal.App.3d at p. 1173.) The rest of his criminal history is hardly “minor.” It consisted of seven misdemeanor convictions in four years. Similarly, the fact defendant equipped his firearm with a silencer cannot be reconciled with defendant’s suggestion trial counsel should have argued the crime was not carried out with planning, sophistication, or professionalism. Nor does the record support the suggestion the crime did not involve “taking or damage of great monetary value, ” because the estimated value of the property taken was $909. In fact, the aggravating factors were so numerous the prosecutor urged the court not only to impose consecutive sentences on the robberies, but also to impose the aggravated term on each count.
Against this backdrop, the tentative decision announcing the court’s intent to impose the middle term for both the robberies, was quite favorable to defendant. In addition to obtaining the midterm, defense counsel knew he had already obtained a very substantial benefit for defendant by negotiating a plea in which the sentence for the attempted murder and the related section 12022.5, subdivision (a), enhancement would run concurrently to the sentence for the robberies and section 12022.53, subdivision (b), enhancements. Moreover, the court’s response to counsel’s section 654 argument signaled it would reject any contention the underlying robberies involved separate “acts of violence or threats of violence.” (Rule 4.425(a)(2).) Under these circumstances reasonably competent counsel could conclude that further argument urging concurrent sentences would have been futile. (See People v. Calhoun (2007) 40 Cal.4th 398; People v. Caesar, supra, 167 Cal.App.4th at pp. 1060-1061; see also People v. Ramirez (2003) 109 Cal.App.4th 992, 1002 [counsel is not ineffective for failing to raise futile objection to consecutive sentence].)
For the same reasons, it is not reasonably probable that if counsel had argued for concurrent sentences, the court would have exercised its discretion differently. The court’s stated reasons for rejecting the section 654 argument indicate it would have found the robberies to be separate acts of violence for the same reason it found the related gun use to be “separate.” And the court’s decision to impose consecutive sentences is amply supported by many other factors. (See rule 4.425(a)(2); People v. Gonzales, supra, 208 Cal.App.3d at p. 1173.)
Defendant does not suggest the court was unaware it had discretion to impose concurrent sentences and the record would not support such an assertion. The court clearly recognized it had discretion to impose concurrent sentences because the prosecutor’s sentencing memorandum urged the court not to make that choice and to instead impose consecutive sentences. Moreover, the court specifically alluded to the prosecutor’s memorandum when it explained its reasons for not staying one of the section 12022.53 enhancements.
We see no analogy between the facts here, and those in People v. Cropper (1979) 89 Cal.App.3d 716, the primary case on which defendant relies. In Cropper, the court found ineffective assistance of counsel because counsel not only failed to make any argument for probation, he effectively “abandoned his role of advocate” by affirmatively agreeing with the probation department’s recommendation to sentence the defendant to prison. (Id. at pp. 720-721.) Here, defense counsel did not abdicate his role as an advocate. By negotiating the plea, he had already obtained for defendant the very substantial benefit of concurrent sentences. In addition, even in the face of the favorable tentative decision to select the midterm on the robberies, defense counsel argued for a shorter aggregate sentence on the robberies, albeit by incorrectly suggesting the court impose a section 654 stay. That defense counsel did not also argue for concurrent sentences does not indicate abandonment of his role as an advocate. Rather, counsel’s conduct indicates reasonable recognition that, once the court stated the gun use—and by implication the robberies—were separate acts of violence involving multiple victims, defense counsel had achieved the best possible outcome for defendant.
Failure to Object to Absence of Statement of Reasons
Failure to make a timely objection to the absence of a statement of reasons for imposing consecutive sentence waives the contention on appeal. (People v. Scott, supra, 9 Cal.4th at p. 352, fn. 15; People v. Alvarado, supra, 87 Cal.App.4th at p. 193.) Defendant attempts to avoid the waiver by arguing counsel rendered ineffective assistance by failing to object and thereby preserve the issue.
Here, the record reflects numerous factors supporting consecutive sentences, and the court clearly signaled its reasons for imposing consecutive terms on the robbery counts when it stated it found the gun uses were “separate... because both victims were threatened with the firearm.” (See People v. Calhoun, supra, 40 Cal.4th 398; People v. Caesar, supra, 167 Cal.App.4th at pp. 1060-1061.) Under these circumstances, competent counsel would have recognized that asking for a more explicit statement of reasons for consecutive sentencing was unnecessary to aid this court’s review, and would not have changed the court’s sentencing choice. “Where sentencing error involves the failure to state reasons for making a particular sentencing choice, including the imposition of consecutive terms, reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence.” (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890; see also People v. Blessing (1979) 94 Cal.App.3d 835, 838-839 [no remand necessary solely for a recital of reasons where the record showed defendant’s crimes met every one of the aggravating criteria and there were no mitigating circumstances].) Since we would not remand for the sole purpose of requiring an explicit statement of reasons for the consecutive sentences on a record such as this, counsel’s failure to preserve the issue by timely objection is harmless.
The additional cases defendant cites in a letter submitted prior to oral argument, Wiggins v. Smith (2003) 539 U.S. 510, 526-527 (Wiggins) and Heishman v. Ayers (9th Cir. Sept. 8, 2010, No. 07-99016) __ F.3d __ [2010 WL3489921] (Heishman) are procedurally and factually distinguishable. The ineffective assistance claims in Heishman and Wiggins were based upon failure to present mitigating psychological evidence in the death penalty phase of a trial. The reviewing courts characterized the assertion that trial counsel had made a strategic choice not to present mitigating evidence as a “post-hoc rationalization” because the record developed in the context of the habeas proceeding demonstrated counsel could not have made an informed choice due to inadequate investigation. (Heishman, supra, at pp. *7-*8; Wiggins, supra, at pp. 526-527.) Here, by contrast, this case is before us on direct appeal, and defendant does not contend counsel failed adequately to investigate mitigating evidence, nor does anything in the record on appeal support a finding of inadequate investigation.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J. Margulies, J.