PEOPLE v. WALTOWER

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Derek WALTOWER, Defendant and Appellant.

No. B070367.

Decided: January 21, 1994

Marilyn Drath, San Rafael, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Michael Weinberger, Supervising Deputy Atty. Gen., and Garrick W. Chock, Deputy Atty. Gen., for plaintiff and respondent.

A jury convicted appellant of kidnapping for robbery (Pen.Code,1 § 209, subd. (b);  count I) with a firearm (§ 12022.5), two counts of second degree robbery (§ 211;  counts II and IV), each with a firearm (§ 12022.5), sexual battery (§ 243.4, subd. (a);  count III), and receiving stolen property (§ 496, former subd. 1;  count V).   A state prison felony allegation (§ 667, subd. (a)) was bifurcated and admitted.

Appellant contends the trial court committed sentencing error and his trial counsel failed to provide effective assistance.   We find no error and affirm the judgment.

FACTUAL BACKGROUND

 There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On February 8, 1991, about 7 p.m., Ms. E. reparked her Toyota from a restricted to an unrestricted area on Elm Street in Long Beach and was exiting her car when appellant pushed her back into her car.   When she tried to get out the passenger side he grabbed her leg and pulled her inside.   Appellant put a gun to her head and told her to do what he said and he would not hurt her but if she did not he would blow her brains out.

Appellant then drove about .8 mile and parked in a dark alley.   He took Ms. E.'s watch, necklace, and earrings and asked for her money.   When she said she had none, he told her to remove her clothes.   Appellant fondled her breasts and vagina.   After awhile appellant drove from the alley and told Ms. E. to get out.   She did and called 911.   Appellant drove off in her car.

Three days later, on February 11, 1991, about 11 p.m., Michael Rubalcava was in Denny's restaurant near 6th Street and Long Beach Boulevard in Long Beach when a person announced that someone was “messing around” with a blue pickup truck in the parking lot.   Mr. Rubalcava went outside and saw that the tarp on his blue pickup truck had been altered.   He also saw appellant with his torso inside a nearby Toyota (Ms. E.'s car).   When appellant withdrew from the Toyota he had a car stereo in his hand.   Mr. Rubalcava asked appellant what he had been doing at his truck and appellant calmly walked toward him, pushed him against the truck, opened his own jacket, pointed a gun at Mr. Rubalcava, and asked him if he wanted to get shot.   At appellant's order, Mr. Rubalcava gave appellant his truck keys.   Mr. Rubalcava then reentered the restaurant and called 911.   When he went outside his truck was gone but a police car was speeding through the parking lot in pursuit.

Appellant drove off in Mr. Rubalcava's truck and fled from the pursuing police vehicle.   Appellant went through red lights, made several turns, drove onto a dirt road, and crashed into a chain link fence.   Police officers arrested appellant for robbery and had him transported to a hospital because of his injuries.   Some time later, by mistake, he was released from custody by hospital personnel.

On September 24, 1991, Long Beach Police Officer Rozo saw appellant in a Datsun automobile which had been stolen about a week earlier.   Appellant exited the car, went to a phone booth, and—without inserting any coins—pretended to use the phone.   Officer Rozo approached appellant, saw him holding credit cards in the name of Michael Romero, questioned him, and then arrested appellant.

DISCUSSION

1. Appellant contends the trial court erred in imposing upper terms on the firearm enhancements (§ 12022.5).

 Appellant contends the trial court erred in imposing upper terms on the firearm enhancements because there were no “circumstances in aggravation that relate[d] directly to the” firearm use (Cal.Rules of Court, rule 428(b)).   We disagree.

California Rules of Court, rule 428(b) provides in pertinent part:  “When the defendant is subject to an enhancement that was charged and found true for which three possible terms are specified by statute, the middle term shall be imposed unless there are circumstances in aggravation or mitigation or unless, under statutory discretion, the judge strikes the additional term for the enhancement.

“The upper term may be imposed for an enhancement only when there are circumstances in aggravation that relate directly to the fact giving rise to the enhancement.”

The trial court found that appellant was on parole when he committed the instant offenses an aggravating circumstance (Cal.Rules of Court, rule 421(b)(4)) directly relating to the offense, and imposed the upper term.

Appellant relies on People v. Edwards (1993) 13 Cal.App.4th 75, 16 Cal.Rptr.2d 572.   But Edwards is distinguishable because the defendant was on probation (the opinion fails to indicate whether felony or misdemeanor probation) not parole and the opinion does not consider Penal Code section 12021.

 Because appellant was a parolee (having been convicted of a felony and sentenced to state prison) it was unlawful for him to possess a firearm (§ 12021), a crime he could have been punished for separately from the instant offenses.  (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412–1414, 273 Cal.Rptr. 253.)   We hold the aggravating circumstance of being on parole relates directly to using a firearm during the commission of a felony.

2. Appellant contends the trial court erred in imposing a consecutive life sentence without stating reasons.

 On the kidnapping for purpose of robbery (§ 209, subd. (b)) conviction, the trial court sentenced appellant to life with possibility of parole consecutive to the aggregate 16–year 8–month sentence imposed on the other convictions.   Appellant contends the trial court erred in imposing this consecutive life term because it failed to state reasons for its sentence choice.   We disagree.

California Rules of Court, rule 425 prescribes the criteria applicable to a consecutive or concurrent sentence choice.   It 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.

“(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 (i) a fact used to impose the upper term, (ii) a fact used to otherwise enhance the defendant's prison sentence, and (iii) a fact that is an element of the crime shall not be used to impose consecutive sentences.”

Although the trial court did not explicitly refer to rule 425, it is clear from the trial court's sentencing statements that it applied the rule's criteria.   In imposing a consecutive sentence on the receiving stolen property conviction the trial court noted “it is a crime that is completely separate from the others involved herein.”   Of course, it was unmistakable that the February 8th offenses involving Ms. E. were separate from and independent of the February 11th robbery of Mr. Rubalcava and the September 24th receiving stolen property offense involving Mr. Romero's credit cards.   Moreover, the trial court expressly relied upon such aggravating circumstances as the “numerous and ․ increasing seriousness” of appellant's convictions (Cal.Rules of Court, rule 421(b)(2)) and “the planning, sophistication, and professionalism” of the offenses.  (Cal.Rules of Court, rule 421(a)(8).)

“Nothing in the statute or rules precludes the sentencing court from using the same fact(s) as a basis for more than one consecutive sentence.”  (People v. Bejarano (1981) 114 Cal.App.3d 693, 705, 173 Cal.Rptr. 71.)

Trial court error, if any, in not fully and separately restating its reasons for imposing a consecutive life sentence was harmless.  (People v. Blessing (1979) 94 Cal.App.3d 835, 839, 155 Cal.Rptr. 780;  see also People v. Foster (1992) 6 Cal.App.4th 1, 14, 7 Cal.Rptr.2d 748;  People v. Green (1988) 200 Cal.App.3d 538, 543, 246 Cal.Rptr. 164;  People v. Preyer (1985) 164 Cal.App.3d 568, 577, 210 Cal.Rptr. 807;  People v. Hartsfield (1981) 117 Cal.App.3d 504, 509–510, 172 Cal.Rptr. 794.)

3. Appellant contends the trial court erred in appending the five year firearm term (§ 12022.5) to the life term.

In imposing the life with possibility of parole sentence on count I (kidnapping for purpose of robbery) the trial court added five years for the firearm enhancement (§ 12022.5).   This sentence is reflected in the judgment, separate from the aggregate 16–year 8–month determinate sentence reflected in the abstract of judgment.

Appellant's “housekeeping” contention is that this five year term appended to the life sentence should instead be part of the aggregated determinate sentence (§ 669) reflected in the abstract of judgment.

We have examined the two form documents (the judgment and the abstract of judgment) and conclude it is unnecessary and would be unwise to make the requested “housekeeping” correction.

We are satisfied the prison authorities will implement the sentence as reflected by the two documents:  a 21–year 8–month determinate term to be followed by a life with the possibility of parole indeterminate term.

4. Appellant contends he was denied the effective assistance of counsel.

 Appellant contends he was denied the effective assistance of counsel.   This claim is entirely based upon his counsel's failure to make a hearsay objection during Officer Rozo's testimony.

Officer Rozo testified he saw appellant in a Datsun automobile, suspected the vehicle was stolen, and later determined the vehicle was stolen.   It was this “determination” that appellant faults his counsel for not objecting to.   The contention is without merit.

We review this argument according to the following standard.

“To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings.  ․ ‘[W]here the record shows that counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’  ․ ‘In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.   In such circumstances, unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.’ ․

“As the United States Supreme Court noted in Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]:  ‘Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.  ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”  ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.’ ”  (People v. Lewis (1990) 50 Cal.3d 262, 288, 266 Cal.Rptr. 834, 786 P.2d 892, citations omitted.)

Appellant has failed to establish either part of his dual burden.   A reasonably competent attorney would have had little reason to object to Officer Rozo's hearsay statement that the Datsun had been stolen because appellant was not charged with the theft of the Datsun, a passenger in the vehicle was also arrested, and an objection might have induced the prosecutor to call the car's owner, no doubt a sympathetic witness.   Secondly, even a successful objection could have had no effect on the outcome because the stolen Datsun was irrelevant to appellant's possession of Mr. Romero's credit cards, stolen from his Hyundai automobile about a week earlier.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.