Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05815
ROBIE, J.
Convicted of numerous crimes arising out of two armed home invasion robberies, defendant Vadim Zakharchenko appeals, contending the case must be remanded for resentencing because: (1) the trial court was mistaken about its sentencing discretion; and (2) the trial court used an improper reason to justify imposition of consecutive sentences in one of the incidents. In the event we deem his second argument forfeited because he did not object in the trial court, defendant contends he received ineffective assistance of counsel.
Finding no merit in defendant’s arguments, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2006, defendant participated in an armed home invasion robbery in Folsom in which there was one victim.
On May 22, 2006, defendant participated in an armed home invasion robbery in Elk Grove in which there were three victims.
On May 23, 2006, defendant participated in an armed home invasion robbery in Granite Bay in which there were two victims.
On our own motion, we take judicial notice of this court’s opinion in the unsuccessful appeal defendant took from the judgment against him in the criminal prosecution that resulted from the Granite Bay home invasion. (People v. Zakharchenko (Apr. 13, 2009) [nonpub. opn.].)
For the Granite Bay home invasion, defendant was convicted in Placer County with robbery, burglary, false imprisonment, and dissuading a witness. (People v. Zakharchenko, supra, at pp. 1, 4.) In Sacramento County, defendant was ultimately charged in a consolidated complaint in this case with burglary, robbery, carjacking, false imprisonment, and criminal threat (counts one through five) for the Folsom home invasion; and burglary, robbery, carjacking, and false imprisonment (counts thirteen through twenty) for the Elk Grove home invasion.
We will refer to this as the Placer County case.
Defendant was also charged in this case with seven additional crimes (counts six through twelve) relating to another incident, but the jury deadlocked on those charges, and they were ultimately dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) and agreement to pay restitution.
On November 8, 2008, defendant was sentenced in the Placer County case to 29 years 4 months in prison. Two days later, the trial began in this case. Following an 18-day trial, the jury found defendant guilty of all charges and enhancements relating to the Folsom and Elk Grove home invasions.
The probation report recommended that defendant be sentenced to an aggregate term of 34 years 8 months in prison in this case. With count fourteen (one count of robbery in the Elk Grove home invasion) to be designated as the principal term, the remainder of the sentence recommendation was made up of unstayed consecutive terms on the carjacking count in the Folsom home invasion (count three) and on the other two robbery counts in the Elk Grove home invasion (counts fifteen and sixteen), along with their related enhancements; the sentences on all other counts were to be stayed under Penal Code section 654. The probation report recommended consecutive sentences because “[t]he crimes and their objectives were predominantly independent of each other” and because “the crimes involved separate acts of violence or threats of violence.”
The probation report recommended the upper term of 9 years plus 10 years on the related firearm enhancement.
Although the probation report acknowledged defendant’s recent sentence in the Placer County case, the report failed to account for the fact that the court had to coordinate defendant’s sentence in this case with his sentence in the Placer County case.
“If a determinate sentence is imposed under [Penal Code] section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in [Penal Code] section 1170.1(a), stating the result of combining the previous and current sentences. In those situations:
Sentencing took place in January 2009. At the hearing, one of defendant’s sisters asked the court to “have a heart and [not] be so harsh” as to sentence defendant to “50, 60 years.” Shortly thereafter, defense counsel said, “I want to be very clear, since the family is here, that the Court is imposing the statutory sentence required by law.... [T]he Court has very -- actually, in this case, no discretion because the statute lays out the crimes that the jury found to be true. So the term of imprisonment the Court is going to impose is required by law.”
When the court later asked the prosecutor if he wanted “to be heard on sentencing,” the prosecutor responded, “Your Honor, I believe probation has recommended consecutive sentencing for all counts that, by law, would not be subject to Penal Code Section 654. I would ask the Court to impose any count by law that could be imposed consecutive[ly] to be imposed consecutive[ly]. And I’ll submit it on the probation report.”
Before imposing sentence, the court said, “For those in the courtroom, these sentences, as [defense counsel] has said, are, in essence, nondiscretionary for the Court. These sentences are proscribed by law. No matter what [defense counsel] says or what the People say in argument one way or the other, these are the sentences that the statutes require the Court to impose, and there is no discretion. [Defense counsel] can argue anything she wants and [the prosecutor] can argue anything he wants, and I can even hear from the Pope and nothing would matter. The sentences are by law.”
The court proceeded to “recognize the conviction out of Placer County... wherein [defendant] was sentenced to 29 years and four months” and said, “That will be deemed the principal term here.” The court then sentenced defendant on his 13 convictions in this case, imposing one-third of the middle term on each count, but staying the sentences on 9 of the 13 counts pursuant to Penal Code section 654. As recommended in the probation report, the unstayed terms were imposed on the carjacking count in the Folsom home invasion (count three) and the three robbery counts in the Elk Grove home invasion (counts fourteen, fifteen, and sixteen). In explaining the consecutive sentences, the court said it was “ordering these sentences to run consecutive[ly] as the acts involve separate -- or the crime involved separate acts of violence or threats under Rule of Court 4.425(a)(2). [¶] Court also finds under [rule] 4.425(a)(1) the crimes and their objectives were predominantly independent of each other and, again, [rule] 4.425(a)(2) the crimes involved separate acts of violence or threats of violence.” The court stated that “the aggregate term of imprisonment [on the four counts with unstayed terms] is 21 years,” which the court stated was “to run consecutive[ly] to the principal term out of Placer County previously identified in the record.”
Technically, the trial court was supposed to “make a new determination of which count, in the combined cases, represents the principal term” (Cal. Rules of Court, rule 4.452(2), italics added), not designate the entire sentence in the Placer County case as the principal term. Nevertheless, the trial court can be understood as having implicitly determined that the robbery count designated the principal term in the Placer County case, on which defendant was sentenced to the upper term of 9 years plus 10 years for a firearm enhancement (see People v. Zakharchenko, supra, at pp. 1-2), was to remain the principal term in the combined cases, as defendant was not sentenced to any greater term for any other count in the combined cases. (See Pen. Code, § 1170.1, subd. (a) [“The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements”].)
Technically the court should have “pronounce[d] a single aggregate term... stating the result of combining the previous and current sentences” (Cal. Rules of Court, rule 4.452), instead of pronouncing only the aggregate term in this case. Nevertheless, neither side asserts error in this aspect of defendant’s sentencing, and the single aggregate terms from both cases is readily apparent from the record -- 29 years 4 months in the Placer County case and 21 years in this case equals 50 years 4 months total.
DISCUSSION
I
The Trial Court Properly Understood Its Sentencing Discretion
On appeal, defendant contends the case must be remanded for resentencing because the trial court mistakenly believed it had no discretion to impose a lesser sentence. (See People v. Meloney (2003) 30 Cal.4th 1145, 1165 [where it appears the trial court was unaware of its authority to exercise discretion in sentencing, the case must be remanded so that the court may exercise that discretion].) We disagree.
Without question, following defense counsel’s lead, the trial court stated it had “no discretion” and that “these sentences... are, in essence, nondiscretionary” and “proscribed by law.” We do not agree with defendant, however, that this means the trial court believed it had no discretion with regard to imposing consecutive versus concurrent sentences.
“It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively.” (People v. Giminez (1975) 14 Cal.3d 68, 71.) To assist the trial court in the exercise of that discretion, rule 4.425 of the California Rules of Court (rule 4.425) sets out “[c]riteria affecting the decision to impose consecutive rather than concurrent sentences.” And here the trial court specifically relied on criteria from rule 4.425, and in fact specifically mentioned the rule, in explaining why it was ordering consecutive sentences. It is impossible to rationally conclude under these circumstances that the trial court was unaware of its discretion to impose concurrent rather than consecutive sentences, as defendant contends.
What, then, did the trial court mean when it said it had “no discretion”? This comment can be reasonably understood as referring to the term of imprisonment to be imposed for each crime, as opposed to the decision whether those terms should run concurrently or consecutively, because the court referred to the “sentences” as being “nondiscretionary” and “proscribed by law.” Once the trial court decided, consistent with the probation report, that it had to stay sentence on 9 of the 13 counts under Penal Code section 654, and once it decided (again, consistent with the probation report) to impose the unstayed terms on the remaining four counts consecutively to the term of imprisonment already imposed in the Placer County case, the court did not have any discretion regarding the term of imprisonment to be imposed for each of those four counts. Under subdivision (a) of Penal Code section 1170.1, “The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses.” (Italics added.) Thus, for example, having decided in the exercise of its discretion to impose the sentences on all three robbery counts from the Elk Grove home invasion (counts fourteen, fifteen, and sixteen) consecutively, the court had no choice but to sentence defendant to five years four months in prison on each count -- two years for the robbery (one-third of the six-year middle term) and three years four months for the gun enhancement (one-third of 10 years). Understood in this manner, the trial court’s comment about having “no discretion” regarding the “sentences” was entirely correct and does not provide any basis for granting relief to defendant. Accordingly, defendant’s first argument fails.
II
Defense Counsel Was Not Ineffective For Failing To Object To The Reasons The Trial Court Gave For Imposing Consecutive Sentences
Defendant contends that even if the trial court understood its discretion with regard to consecutive sentencing, the court erred in imposing the sentences on the three robbery convictions from the Elk Grove home invasion (counts fourteen, fifteen, and sixteen) consecutively to each other. Specifically, he asserts “the trial court relied on an improper factor in imposing these consecutive terms” because “the robbery offenses in counts 15 and 16 were not predominantly independent of the robbery offense committed in count 14.”
The People contend defendant forfeited this argument when he failed to raise it in the trial court. We agree. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant contends he was not given a meaningful opportunity to object (see id. at p. 356), but that is not so. Nothing prevented defense counsel from speaking up after the court explained why it was imposing consecutive sentences. Indeed, defense counsel argued about the restitution fine thereafter. Moreover, at the end of the hearing, just before the court remanded defendant into custody, the court specifically asked, “Counsel, anything else?” and the only issue defense counsel raised was about where defendant would be incarcerated.
As a last resort, defendant contends his trial counsel was ineffective “because a competent attorney would have objected to the use of an improper factor to justify imposition of the consecutive terms of imprisonment.” We disagree.
As noted above, the trial court gave two reasons for imposing consecutive sentences in this case: the crimes and their objectives were predominantly independent of each other (rule 4.425(a)(1)), and the crimes involved separate acts of violence or threats of violence (rule 4.425(a)(2)). In his challenge to the consecutive sentences on the three robbery convictions from the Elk Grove home invasion, defendant’s complaint is limited to the former reason. In other words, he does not dispute that the trial court reasonably could have found (and reasonably did find) that the three robbery offenses in the Elk Grove home invasion involved separate acts of violence or threats of violence. Instead, his complaint is that “one of the two reasons used to impose... consecutive terms [on the robbery convictions from the Elk Grove home invasion] was improper,” and “there is a reasonable probability that the trial court would have imposed concurrent terms on these convictions if the improper reason had been brought to the trial court’s attention.”
Defendant’s argument fails for two reasons. First, trial counsel may have reasonably understood that the first reason the trial court gave for imposing consecutive sentences -- the crimes and their objectives were predominantly independent of each other -- was not offered to justify running the sentences on the three robbery convictions from the Elk Grove home invasion consecutively to each other, but instead was offered to justify running the sentences from the Elk Grove incident consecutively to the sentence on the carjacking conviction from the Folsom home invasion. Viewing the record in this way, the court articulated only one reason for running the sentences on the three robbery convictions from the Elk Grove home invasion consecutively to each other -- the crimes involved separate acts of violence or threats of violence -- and defendant does not claim this reason was improper. In this circumstance, the lack of an objection did not constitute ineffective assistance of counsel.
Second, and in any event, we do not agree with defendant’s assertion that “there is a reasonable probability that the trial court would have imposed concurrent terms” had defense counsel objected in some manner to the reasons the court gave for imposing consecutive sentences. Under rule 4.425(b), with certain exceptions not applicable here, “Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences.” Here, the probation report identified three circumstances in aggravation: (1) the crime involved great violence, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) the victims were particularly vulnerable; and tying, binding, or confining a victim during a serious felony. In addition, another circumstance in aggravation is noted in what may be the trial court’s handwriting on the probation report: defendant occupied a position of leadership or dominance. Defendant does not dispute that these aggravating circumstances applied to the Elk Grove home invasion. Indeed, even defendant’s own description of the Elk Grove home invasion in his opening brief reveals the presence of most of these circumstances. He acknowledges that the evidence shows he (and an accomplice) walked into an open garage where a woman was vacuuming her car, pointed a gun at her and made her go inside the house, then directed the woman, her husband, and their daughter to get down on the floor, where his accomplice held them at gunpoint while defendant ransacked the house. He then tied the victims up with cords and drove off with his accomplice and the loot in the victims’ vehicle.
The only circumstance missing from defendant’s statement of facts is that one of the victims was 78 years old, which would support a finding of particular vulnerability.
Because he received only one-third of the middle term on each of the kidnapping counts from the Elk Grove home invasion, these aggravating circumstances were not used for any other purpose in defendant’s sentencing, and it is more than likely the trial court would have relied on these circumstances to impose consecutive sentences on those counts if defendant’s trial counsel had objected to the reasons the trial court gave for imposing consecutive sentences. Accordingly, defendant’s ineffective assistance of counsel claim fails.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., BLEASE, J.
“(1) The sentences on all determinately sentenced counts in all of the cases on which a sentence was or is being imposed must be combined as though they were all counts in the current case.
“(2) The judge in the current case must make a new determination of which count, in the combined cases, represents the principal term, as defined in [Penal Code] section 1170.1(a).
“(3) Discretionary decisions of the judges in the previous cases may not be changed by the judge in the current case....” (Cal. Rules of Court, rule 4.452.)