Opinion
B266821
08-02-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERTO VELASCO, Defendant and Appellant.
Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA420677) APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. LaForteza, Judge. Affirmed and remanded, with directions. Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Peggy Z. Huang, Deputy Attorney General, for Plaintiff and Respondent.
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We filed an opinion affirming the judgment in this case on December 2, 2016, holding that the trial court acted within its discretion in imposing consecutive terms for offenses committed at the same time against multiple victims, and that trial counsel was not constitutionally inadequate for failing to object to the trial court's evaluation of factors in aggravation and mitigation in imposing consecutive sentences. The Supreme Court granted defendant's petition for review on March 15, 2017, and transferred the matter to this court with directions to vacate our decision and consider whether defendant is entitled to make a record before the superior court of "'mitigating evidence tied to his youth'" in light of People v. Franklin (2016) 63 Cal.4th 261, 268-269, 283-284 (Franklin), and Penal Code sections 3051 and 4801, subdivision (c). We again affirm the judgment, but remand to the trial court for the limited purpose of permitting defendant an opportunity to make a record of mitigating evidence tied to his youth for consideration at a future youth offender parole hearing.
All further statutory references are to the Penal Code unless otherwise stated.
PROCEDURAL HISTORY
A jury convicted defendant and appellant Roberto Velasco in counts 3 and 5-10 of second degree robbery (§ 211), in count 11 of attempted second degree robbery (§§ 664, 211), and found true the allegations that defendant had personally used a firearm as to all counts (§ 12022.53, subd. (b)). After imposing and recalling the original 43-year sentence, the trial court sentenced defendant to 34 years 4 months in state prison.
The jury found defendant not guilty of one additional count and was unable to reach verdicts on two other counts.
The sentence was computed as follows: a principal term of 13 years on count 3, consisting of the middle term of 3 years for robbery plus 10 years for the firearm enhancement; consecutive subordinate terms totaling 21 years 4 months in counts 5, 6, and 9-11, consisting of one third the midterm on the substantive charges enhanced by one third the midterm on the firearm use findings; and concurrent sentences in counts 7 and 8.
At issue in the appeal are the consecutive sentences the trial court imposed as to multiple offenses committed at the same time. The robberies in counts 5 and 6 were committed on one occasion, and the robbery and attempted robbery in counts 10 and 11 took place on another occasion. Defendant's primary argument on appeal is that the court abused its discretion in imposing consecutive terms in counts 6 and 11. He also argues trial counsel was constitutionally inadequate based on a failure to object to the trial court's reliance on improper factors in aggravation of punishment in imposing consecutive sentences. Finally, in a supplemental brief after remand from the Supreme Court, defendant contends he is entitled to a meaningful opportunity in the trial court to make a record of mitigating evidence tied to his youth.
FACTS
Given the focus of defendant's contentions on appeal, we begin the facts with the events supporting the convictions in counts 5-6 and 10-11.
Between January 2, 2014, and January 21, 2014, defendant robbed seven people and attempted to rob another. These crimes were committed in a similar fashion: wearing a hooded sweatshirt or hat, defendant surprised the victims at night as they were walking down the street alone or in pairs. Defendant pointed his gun at each of the victims and demanded their belongings, including cell phones. After committing the offenses defendant entered the passenger side of a waiting vehicle and sped away with his accomplice.
Counts 5 and 6
On January 5, 2014, defendant robbed Liset Flores (count 5) and Christina Ponce (count 6) as they walked down the street. Defendant's accomplice, driving an SUV, pulled up next to the women. Defendant exited the SUV and pointed his gun at each woman, stealing their purses and Ponce's cell phone.
Counts 10 and 11
On January 2, 2014, defendant robbed Michelle Wagner (count 10) and attempted to rob her daughter Nicole (count 11) as they walked to a grocery store. Defendant jumped out from between cars, first turning his gun to Michelle. He took Michelle's cell phone and her purse, which contained Nicole's rent money. He then turned his gun to Nicole, demanding a cell phone, which she did not have. Defendant left in a waiting car.
Remaining Counts
About an hour after robbing Michelle Wagner, defendant exited a car driven by his accomplice and robbed Efren Lopez (count 3) at gunpoint of his cell phone and money.
On January 9, 2014, defendant robbed Rebecca McTavish (count 7) and her boyfriend Jason Woliner (count 8) as they walked to a party. Defendant's accomplice drove up next to McTavish and Woliner. Defendant exited the vehicle, "chambered a round," pointed his gun at the couple, and demanded their belongings. Defendant took McTavish's backpack, including her cell phone, and Woliner's cell phone.
On January 21, 2014, defendant robbed Alexandra Oliver (count 9) as she walked down an alley. Defendant emerged from the passenger side of a car and pointed a gun at Oliver. She threw her bag at him and dropped to the ground. Defendant asked if she had a cell phone in her bag. She replied, "Yes." Defendant took her bag, got back into the car, and fled the scene. Oliver memorized the license plate number of the fleeing vehicle and reported the robbery to the police.
Additional Evidence
The car described by Oliver belonged to defendant's sister's ex-girlfriend. At the request of the police, defendant's sister called defendant and said the police would like to speak with him. The police found defendant at his home, holding a white trash bag containing four cell phones. The police searched defendant's closet and discovered $9,000 in cash.
Defendant lived with his mother, sister, and the sister's four young children. Defendant was unemployed at the time of the robberies and helped his father sell clothing at the Los Angeles Swap Meet on Sundays. Defendant's mother denied that defendant had $9,000 hidden in his closet.
Defendant admitted to robbing Oliver but denied involvement in the other robberies. His sister's ex-girlfriend had given him cell phones that he sold at the Los Angeles Swap Meet, but he was not involved in the procurement of these cell phones. He became curious about how she obtained the phones. On January 21, 2014, she drove defendant to an alley, saw Oliver, and told him it was "[his] turn." Defendant robbed Oliver, but claimed an acquaintance committed the other robberies. Defendant made a phone call to his girlfriend from jail, telling her to take the money from his closet and spend it on herself because he did not want his family to find the money.
DISCUSSION
Consecutive Sentences
Defendant contends that the trial court abused its discretion by imposing consecutive sentences on counts 6 and 11. He reasons that because counts 6 and 11 "arose from the same set of circumstances, at the same time, and in the same place" as counts 5 and 10, respectively, the court's reason for imposing consecutive sentences was invalid because counts 5 and 6, and 10 and 11, were not separate acts of violence. Defendant also contends that the trial court improperly weighed the sentencing factors, imposing a sentence that is inconsistent with "legitimate sentencing objectives." Defendant claims that that the mitigating factors were "overwhelming" and the aggravating factors "almost nonexistent," requiring a shorter term of imprisonment.
Defendant points to purported legal errors in the court's reasoning for the sentence imposed on May 7, 2015. As the sentence imposed on May 7, 2015, was not the final sentence, we review this hearing only to the extent that the trial court relied on the statements and arguments presented at that time.
Relevant Proceedings
The May 7, 2015 Sentencing Hearing
At the May 7, 2015 sentencing hearing, the court "consider[ed] the probation report, the People's sentencing memorandum," and "evidence taken at the trial." The Wagners made statements explaining the lasting fears they suffered resulting from defendant pointing a gun at them and describing how defendant's actions changed their lives. McTavish provided a letter, asking the court for "leniency in sentencing" and requesting that defendant be given "a chance to be a contributing member to the community," stating "a very lengthy prison sentence will not allow that."
Michelle Wagner described how her life had changed as a result of the robbery and her hope to heal with time. She was terrified to walk after dark and suffered panic attacks. She pictured life without her daughter, or her daughter being terribly injured. She had nightmares and headaches several times a month.
Nicole Wagner explained the fear she felt when defendant pointed the gun toward her. She lived in poverty and suffered eviction after defendant robbed her of her rent money.
Six of defendant's family members and two family friends gave statements asking for leniency in consideration of defendant's youth and circumstances. They stressed that defendant was only 19 years old at the time of the robberies and attempted robbery. He grew up in a dangerous neighborhood, and accepted responsibility for the younger children in his family at a very early age, feeding and caring for them, attending conferences at school, and performing other duties that would usually be performed by an adult. Defendant worked to contribute income to his family, but was laid off from a job shortly before committing the charged crimes. As a result, he was unable to pay rent. He asked his father for assistance, but was refused. One family friend stated that defendant suffered from depression and other "problems youth have." Defendant's brother emphasized that he was not old enough to appreciate the magnitude of what he had done, or to understand the lasting impact the crimes would have on the victims' lives. Defendant's family and friends requested that the court give defendant a second chance so he could rehabilitate himself. Defendant made a statement, saying he regretted his actions, but he "didn't think it's right that everything be put on [him]" and that going to jail was "not worth it."
Defense counsel asked the trial court to impose a principal term of 15 years, composed of the high term of five years plus a 10-year enhancement for use of a firearm, and for the remaining sentences to run concurrently. Counsel argued that a shorter sentence was warranted because defendant was only 19 years old "and virtually a kid" at the time of the offenses, the crimes happened over a 20-day period, and the victims had not suffered actual physical harm. When asked by the court to address its discretion to run the sentences concurrently, defense counsel argued for concurrent sentences because the purpose of sentencing is rehabilitation, defendant should be allowed "a second chance," and the court's tentative sentence, which imposed consecutive sentences, "is basically a life sentence."
The prosecutor argued there were insufficient mitigating circumstances to justify concurrent sentences. The prosecutor believed that the only factor in mitigation—defendant's minimal criminal history—was negated by the number of criminal acts he committed. Defendant showed no real remorse or acceptance of responsibility.
The court sentenced defendant to 43 years in state prison. It selected count 3 as the principal term and imposed the middle term of 3 years plus 10 years on the firearm enhancement. The court selected the middle term because "the factors in mitigation and aggravation are substantially in balance." It imposed consecutive sentences for the remaining counts, noting it was exercising its discretion to run the sentences consecutively because of the high degree of violence (counts 6 and 11), the separate nature of the offenses (counts 5, 7, 9, and 10), and multiple victims (count 8).
The July 28, 2015 Sentencing Hearing
On June 5, 2015, during an unreported chambers conference, the trial court invoked section 1170, subdivision (d), and recalled and vacated the sentence imposed on May 7, 2015. The court held a second sentencing hearing on July 28, 2015, incorporating the material previously received and arguments made. The court indicated that it "reconsidered the sentence of 43 years and reconsidered the statements -- victim impact statements provided by the People as to Rebecca . . . McTavish." The court reduced defendant's sentence to 34 years 4 months by imposing concurrent sentences in counts 7 and 8. It again selected count 3 as the principal term, imposed the middle term sentence, and imposed a consecutive sentence for the firearm enhancement. The court imposed consecutive sentences in counts 5, 6, 9, 10, and 11 because of "the separate nature of the offenses."
Analysis
A trial court has discretion when choosing to impose a concurrent or consecutive sentence for an offense. (See § 669, subd. (a); People v. Sandoval (2007) 41 Cal.4th 825, 850.) A single aggravating factor may justify consecutive sentences. (People v. Davis (1995) 10 Cal.4th 463, 552; People v. King (2010) 183 Cal.App.4th 1281, 1323-1324.) The criteria affecting the decision to impose consecutive rather than concurrent sentences include the following: "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); People v. Thurs (1986) 176 Cal.App.3d 448, 451-452 (Thurs) [consecutive sentence not an abuse of discretion where defendant committed robbery of two victims at the same time and place].) "A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (People v. Jones (2009) 178 Cal.App.4th 853, 860-861; accord, People v. Bradford (1976) 17 Cal.3d 8, 20.)
Subsequent citations to rules are to the California Rules of Court.
We conclude that, to the extent defendant argues the court relied on an improper factor in aggravation to support the consecutive sentences, the issue was forfeited due to the lack of a timely objection. Although defense counsel requested that concurrent sentences be imposed, he did not expressly object on the ground that the court relied on an improper factor in aggravation when imposing consecutive sentences. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) "Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Id. at p. 353.) The rule announced in Scott applies "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 stated reasons allegedly do not apply to the particular case and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Ibid.)
Even if the issue had been preserved, we hold that it fails on the merits. As noted above, only one aggravating factor is required to support a consecutive sentence. Here, the court relied on "the separate nature of the offenses committed" to justify consecutive sentences. Defendant's contention that this was an inappropriate basis for consecutive sentences as to the offenses against two victims on one occasion was incorrect as a matter of law. California law has long recognized that violent crimes against multiple victims may be separately punished. (People v. Latimer (1993) 5 Cal.4th 1203, 1212; Neal v. State of California (1960) 55 Cal.2d 11, 20-21, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331; Thurs, supra, 176 Cal.App.3d at p. 452 ["When there are several victims, an act of violence is separate when it exposes one of the victims to a risk of injury that is not shared by the others"].) Defendant cites no contrary authority.
We hold that the trial court's findings in this case fell squarely within rule 4.425(a)(2). The offenses in counts 6 and 11, although committed at the same time as counts 5 and 10, respectively, involved separate acts of violence or threats of violence when defendant pointed his gun at each of the victims.
Defendant's claim that the trial court abused its discretion by imposing consecutive sentences in counts 6 and 11 because the mitigating circumstances overwhelmed the circumstance in aggravation is no more than a request that we reweigh the evidence and impose our judgment over that of the trial court—something we are not permitted to do. (Scott, supra, 9 Cal.4th at p. 355 [appellate court cannot "reweigh valid [sentencing] factors bearing on the decision below"].) While there were arguable circumstances in mitigation, which the trial court understood, rejection of those circumstances was not unreasonable as a matter of law.
As an example, defendant argues "precedents of the United States Supreme Court make it plain that Velasco's age meant that he was less culpable and more capable of rehabilitation," citing to Miller v. Alabama (2012) 567 U.S. 460, Graham v. Florida (2010) 560 U.S. 48, and Roper v. Simmons (2005) 543 U.S. 551. These Supreme Court authorities did not apply to defendant, who was not a minor at the time of the offenses. (People v. Perez (2016) 3 Cal.App.5th 612, 618; People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.) The trial court was aware of defendant's youth and related factors at sentencing, as numerous people made statements on his behalf in this regard, and defense counsel frequently pointed to defendant's relative youth in argument. In the end, the court reasonably determined the counts in question warranted consecutive sentences.
The argument that defendant's crimes were committed so closely in time as to indicate a single period of aberrant behavior is equally unpersuasive. (Rule 4.425(a)(3).) The trial court could reasonably decide that defendant's multiple offenses, spanning 20 days and involving multiple offenses at different locations, was not aberrant behavior. Defendant did not voluntarily cease his criminal activity. (Rule 4.423(b)(3) [a defendant's voluntary acknowledgement of wrongdoing before arrest or at an early stage of proceedings is a factor in mitigation].) He was captured shortly after his final robbery, as a result of Oliver reporting the license plate number of the getaway car to the police. Even after the Oliver robbery, defendant engaged in behavior inconsistent with an offender seeking to end a brief period of criminality. Defendant was captured as he attempted to throw away stolen cell phones, called his girlfriend from jail and urged her to remove $9,000 from his residence to prevent its discovery, and complained at sentencing that it was unfair "that everything be put on [him]."
Defendant argues that no victim was physically injured, but this circumstance did not compel the trial court to impose concurrent sentences. None of the victims offered physical resistance. Neither the exercise of prudent judgment by victims held at gunpoint nor the absence of gratuitous violence by defendant is the type of mitigation that requires concurrent sentences as a matter of law. The argument also overlooks the harm done by defendant, as evidenced by the statements of Michelle and Nicole Wagner, who described their ongoing fears and trauma caused by defendant.
Ineffective Assistance of Counsel
Defendant contends that trial counsel abdicated his duty to object "when the court relied on improper factors to consecutize [defendant's] sentences." Defendant also found fault with counsel's failure to argue that "the United States Supreme Court precedents . . . explained why [defendant's] youth and circumstances were such strong mitigating factors."
As explained above, the premise of these contentions is incorrect—the trial court properly found a circumstance in aggravation, and the Supreme Court precedents did not apply to defendant. "Because there was no sound legal basis for objection," defendant "[could not] establish ineffective assistance" of counsel at sentencing. (People v. Cudjo (1993) 6 Cal.4th 585, 616.) Having failed to establish prejudice or deficient conduct by counsel, defendant's claim of inadequate representation necessarily failed. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Record of Youth Related Factors
In his supplemental brief filed pursuant to California Rules of Court, rule 8.200(b)(1), defendant contends we should remand his case for further proceedings pursuant to the Supreme Court's recent decision in Franklin, supra, 63 Cal.4th 261, because he committed his crimes when he was only 19 years old. Defendant requests that we direct the trial court to make a record under sections 3051 and 4801 regarding any factors related to his youth that may become relevant in a future parole board hearing. We agree.
Respondent did not file a supplemental brief.
Section 3051, subdivision (b)(1), provides that, with certain exceptions, when a defendant is convicted for a controlling offense that he or she committed before age 23, the defendant "shall be eligible for release on parole at a youth offender parole hearing by the [Parole Board]" at a time set by statute based on the sentence imposed. Section 3051, subdivision (f)(1), sets forth the requirements for the factors that shall be considered at such a hearing.
In Franklin, the trial court sentenced a juvenile defendant to an indeterminate sentence of 50 years to life for murder. On appeal, the defendant argued that his sentence violated constitutionally based rules governing juveniles in that the sentence amounted to the equivalent of a sentence of life without the possibility of parole in violation of Miller, supra, 567 U.S. 460, and related cases. Our Supreme Court in Franklin found the defendant's claim to be moot in light of SB 260, which, by "operation of law," now grants youth offenders who have received "lengthy" sentences the opportunity for a hearing to seek parole before the end of their sentences. (Franklin, supra, 63 Cal.4th at pp. 280-282.) SB 260 became effective January 1, 2014.
At the same time, however, the Supreme Court noted, "It is not clear whether Franklin had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a [future] youth offender parole hearing. Thus, although Franklin need not be resentenced . . . we remand the matter to the trial court for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.)
The Supreme Court explained that, if the trial court found that Franklin did not have a sufficient opportunity to make such a record, the court was to allow him to do so, under governing rules of evidence including cross-examination. Also, the prosecutor was to be allowed "likewise [to] put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Franklin, supra, 63 Cal.4th at p. 284.) "The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation" in reviewing the decision to grant or deny parole under sections 3051 and 4801. (Ibid.)
Here, defendant was convicted in February 2015 and resentenced in July 2015. Although sections 3051 and 4801 had become effective by that time, Franklin had not yet been decided, and defendant had no reason to seek an opportunity at the time of his sentencing to preserve a record for later use at a youth offender parole board hearing. Under Franklin, defendant is entitled to a remand for the opportunity to make a record for purposes of sections 3051 and 4801. (See People v. Perez (2016) 3 Cal.App.5th 612, 618-619 [remand for Franklin hearing for 20 year old defendant].) Should defendant seek a hearing after remand, both defendant and the prosecution will be entitled to present evidence regarding the factors mentioned in Franklin.
DISPOSITION
The judgment is affirmed. The cause is remanded to the trial court for the limited purpose of affording defendant an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings as it fulfills its statutory obligations under sections 3051 and 4801. Resentencing is not required.
KRIEGLER, Acting P.J. We concur:
BAKER, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.