Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF187494, Darryl B. Ferguson, Judge.
Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Dawson, J.
INTRODUCTION
On October 25, 2007, appellant, Karl Lynn Brazell, was charged in an information with kidnapping for ransom (Pen. Code, § 209, subd. (a), count one), assault with a deadly weapon (§ 245, subd. (a)(1), count two), false imprisonment by violence (§§ 236 & 237, count three), assault with a deadly weapon (§ 245, subd. (a)(1), count four), attempted robbery (§§ 664 & 211, count five), and commercial burglary (§ 459, count six). The information further alleged that one of the victims was a developmentally delayed adult (§ 667.9, subd. (a)) and that appellant used a deadly and dangerous weapon in committing counts one, three, five, and six (§ 12022, subd. (b)(1)). On February 6, 2008, a jury found appellant guilty on all counts and found both enhancements to be true.
Unless otherwise specified, all statutory references are to the Penal Code.
On March 5, 2008, the court sentenced appellant to an indeterminate term of life with the possibility of parole on count one plus consecutive terms of one year each for the weapon enhancement and the section 667.9, subdivision (a) enhancement. A determinate term of four years, the aggravated term, was imposed on count four. The term on count five was ordered to run concurrently with count four and the sentences on the remaining counts were stayed pursuant to section 654.
On appeal, appellant contends, and respondent concedes, that his conviction on count three must be reversed because it is a lesser included offense of kidnapping. Appellant further contends that the trial court erred in sentencing him to the upper term.
FACTS
Richard St. Louis, Jared O., and other customers were in a liquor store in Tulare on July 19, 2007. St. Louis and Jared O. were purchasing sodas. Appellant ran into the store with a plastic grocery bag over his head. Appellant grabbed Jared O. around the neck, proceeded to pound the counter, and told the clerk twice to: “Give me the fucking money.” When appellant left, St. Louis could see that he was carrying a knife with a blade five or six inches long and St. Louis could see appellant’s face from the bridge of his nose down. St. Louis was later able to identify appellant from a police photograph.
The clerk of the store, Roxanne Ali did not begin to take money out of the cash register. St. Louis testified that Ali appeared to be shocked. Ali never gave appellant money. As appellant was leaving the store, he gave Jared O. a slight push causing Jared O. to fall to the floor. Jared O. has a handicap. Jared O.’s father testified that his son suffers from Down’s Syndrome.
Marie Hernandez and Darci Massey were in the store taking a break from work. They also saw appellant enter the store with a plastic bag over his head, grab Jared O., and demand money from Ali. Hernandez and Massey saw a knife in appellant’s hand. Both women heard appellant demand money or he would cut Jared O. Massey called 911.
Ali testified that a man later identified as appellant came into her store with a bag on his head. The man grabbed Jared O. by the neck. Although the man demanded money, Ali refused to give it to him. Ali told the man there was a cop standing outside the store. The man pushed Jared O. to the floor and left. Although the store is equipped with a videotape device, it was not working at that time.
Devon Fowler, who was in the store during the incident, testified that appellant grabbed Jared O. by the neck and put a knife to Jared O.’s throat. The man demanded money. Ali refused to give him any. Appellant started smashing stuff off the counter. The knife appellant was carrying made a small little cut on Jared O.’s neck. Appellant asked Ali if she wanted Jared O. to die. Ali said she had no money. Appellant pushed Jared O. away and fled.
David Frausto was walking home by the liquor store next to the post office when he saw appellant. Frausto had never seen appellant before. Appellant looked at Frausto strangely and appeared to be angry. As Frausto walked past appellant, who was standing next to a telephone booth, Frausto thought appellant hit him. Appellant had stabbed Frausto’s right hip. A blood test of appellant showed that his blood alcohol level after his arrest was .15 percent.
LESSER INCLUDED OFFENSE
Appellant contends, and respondent concedes, that he cannot be convicted of kidnapping and false imprisonment based on the same facts because false imprisonment is a lesser included offense of kidnapping. Accordingly, we will reverse appellant’s conviction for count three, false imprisonment.
Multiple convictions cannot be based on necessarily included offenses. (§ 954; People v. Ortega (1998) 19 Cal.4th 686, 692.) A court may consider only the statutory elements of the respective offenses when determining if multiple convictions are proper. (People v. Reed (2006) 38 Cal.4th 1224, 1229.)
Kidnapping for extortion as set forth in section 209 subdivision (a), applies if the victim is confined or detained for ransom, reward, or money. The element of asportation is not required to commit the offense. (People v. Macinnes (1973) 30 Cal.App.3d 838, 844.) Section 236 proscribes the unlawful violation of the liberty of another. Section 236 is a lesser included offense to aggravated kidnapping. (People v. Chacon (1995) 37 Cal.App.4th 52, 65 (Chacon); People v. Magana (1991) 230 Cal.App.3d 1117, 1120-1121 (Magana).) Because false imprisonment is a lesser included offense of aggravated kidnapping, appellant’s conviction on count three must be reversed and vacated. (People v. Shadden (2001) 93 Cal.App.4th 164, 171; Chacon, supra, 37 Cal.App.4th at p. 65; Magana, supra, 230 Cal.App.3d at p. 1121.)
UPPER TERM SENTENCE
Appellant contends the trial court erred in imposing the upper term sentence on count four, assault with a deadly weapon, because the trial court failed to state reasons for its sentencing choice. Appellant further argues that defense counsel was ineffective for failing to object to the court’s sentence.
Sentencing Hearing
The probation officer’s report sets forth that appellant had ten prior misdemeanor convictions for violations of the Vehicle Code as well as one pending allegation for violation of the Penal Code. Appellant had two misdemeanor convictions for being under the influence of a controlled substance in violation of Health and Safety Code section 11550. The convictions occurred between 1999 and 2006. Appellant was found guilty of nine counts of contempt in 1987.
The probation officer noted there were no mitigating factors. The probation officer set forth appellant’s problems with alcohol, noting that appellant drank up to a fifth of tequila a day until he was arrested. Earlier in appellant’s life he experimented with heroin and used cocaine for eight years. Appellant graduated from drug recovery programs in 1989 and 2007 and described himself as a drug and alcohol addict.
As aggravating factors, the probation officer stated the crime involved great violence or the threat of great bodily harm, appellant was convicted of other crimes for which he received consecutive sentences, the manner of the crimes indicated planning, appellant was engaged in violent conduct indicating he is a serious danger to society, and appellant’s convictions as an adult are numerous.
The probation officer recommended appellant be given the consecutive upper term of four years on count four as well as consecutive one-year sentences on the section 667.9 enhancement and the weapon enhancement. Sentences on the remaining counts were recommended to be stayed pursuant to section 654, and in the case of count five, to be served concurrently. Appellant’s daughter wrote a letter attached to the probation report noting appellant’s addiction to alcohol and prescription drugs. She stated that she “would love to see him get some mental/addiction help.”
At the beginning of the sentencing hearing, the trial court asked defense counsel, Mr. Olmos, if he was planning to file a statement in mitigation. Olmos replied that he was going forward with sentencing. The court noted it had read the probation officer’s report and the letter from appellant’s daughter. Olmos asked for a copy of the letter. When the court asked if there was any legal cause why the sentence should not then be imposed, Olmos replied, “No.” Another attorney representing appellant in violation of probation matters and pending, unrelated misdemeanor cases was also present at sentencing.
The trial court dismissed the pending cases at the end of the sentencing hearing.
Olmos waived formal arraignment for sentencing. When the court asked Olmos for any comments, he replied: “Well, we’ve received the probation report. I reviewed it with Mr. Brazell. Really don’t have any problems with the recommendation. The only concern I have is on Page 12 where they’re asking for $10,000 in restitution.” The court stated it was only ordering $500 in restitution. Olmos stated, “[t]hat was really the only concern.” The parties had a brief discussion concerning direct victim restitution to Mr. Frausto. The court left the matter of direct victim restitution open. Olmos then submitted the matter.
At the conclusion of sentencing, Olmos asked the court whether the total determinate sentence was six or seven years to life. The court replied that appellant’s sentence was life plus two years and then an additional four years on count four. Olmos and the prosecutor thanked the court and the proceedings were concluded.
Analysis
Appellant’s argument that the trial court failed to state its reasons for imposing its sentence is correct, but any error here is subject to forfeiture. Section 1170, subdivisions (b) and (c) expressly state that the trial court shall state the reasons for its sentencing choice. California Rules of Court, rules 4.406 and 4.420(e) require that the trial court state the reasons for its sentencing choice.
In People v. Scott (1994) 9 Cal.4th 331, 354 (Scott), the California Supreme Court announced the rule that a party in a criminal case may not, on appeal, raise issues involving the trial court’s failure to make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. Scott further stated that the defendant must have a meaningful opportunity to object to claims that would otherwise be waived. (Id. at p. 356.)
In People v. Gonzalez (2003) 31 Cal.4th 745, 751-755 (Gonzalez), the California Supreme Court held that a trial court did not have to give a tentative ruling in order for defense counsel to have a meaningful opportunity to object to the court’s sentence. The key requirement is for the parties to have a meaningful opportunity to object. (Id. at p. 752.)
Here, the probation officer’s report recommended the sentence that the trial court ultimately imposed. Although the court did not pronounce a tentative sentence, it asked for argument before announcing the sentence. Defense counsel, Olmos, indicated at the beginning of the hearing that he was not filing a statement in mitigation. Olmos then declined the court’s invitation to make any comments other than to state that the only concern he and his client had with the probation officer’s report was the amount of the restitution fine. Olmos submitted the matter without argument. At the conclusion of the hearing, Olmos asked if the determinate portion of appellant’s sentence was six or seven years. The court answered counsel’s question. Olmos clearly had multiple meaningful opportunities to object throughout the sentencing hearing but chose not to do so. Under the holdings of Scott and Gonzalez, appellant has forfeited any issue on appeal concerning the trial court’s failure to state the reasons for its sentence.
Appellant further argues that trial counsel was ineffective for not raising this objection and for failing to raise the issue of his alcoholism and drug dependency. Appellant describes these addictions as mitigating factors. In support of his contention, appellant relies on People v. Simpson (1979) 90 Cal.App.3d 919, 927-928 (Simpson) which holds that alcoholism is always a mitigating sentencing factor.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Although alcoholism and drug addiction may be mitigating factors, they are not always mitigating factors. Simpson has been criticized by a number of subsequent authorities as analyzed in People v. Reyes (1987) 195 Cal.App.3d 957, 960 (Reyes). (See also People v. Regalado (1980) 108 Cal.App.3d 531, 539-540 (Regalado).) The Reyes and Regalado courts both found that where the defendant has a pattern of substance abuse, addiction, or alcoholism, the defendant has failed to deal with the problem despite opportunities to do so, and the defendant continues criminal conduct to support the pattern of substance abuse, the trial court is justified in imposing a higher sentence rather than treating the substance abuse as a factor in mitigation. (Reyes, supra, 195 Cal.App.3d at p. 963; see Regalado, supra, 108 Cal.App.3d at p. 540 [substance abuse can be an aggravating factor].) The court in Reyes further held that the error in the Simpson holding was that court’s conclusion that if a defendant’s alcoholism is a substantial factor in the commission of crime, then it necessarily significantly reduced the defendant’s culpability. (Reyes, supra, 195 Cal.App.3d at p. 963.) Reyes concluded that Simpson was wrongly decided. (Reyes, supra, 195 Cal.App.3d at p. 964.) We agree with Reyes and reject the holding in Simpson that drug or alcohol addiction is always a mitigating factor.
The trial court had read the probation report, including the letter from appellant’s daughter. Appellant’s drug and alcohol dependency was documented in the probation report, along with his completion of two rehabilitation programs. The most recent of these programs was completed in 2007, the same year he committed the instant offenses. Furthermore, appellant was under the influence of alcohol when he committed the instant offenses, indicating that he was offending to support his alcoholism and drug dependency. Appellant had opportunities to overcome his addictions and failed to do so. Appellant’s drug and alcohol issues do not present a mitigating circumstance.
The trial court signed the probation report indicating that it had read and considered the report. Thus, the court may be presumed to have considered and rejected appellant’s drug problem as a mitigating circumstance. (See Reyes, supra, 195 Cal.App.3d at p. 961; People v. Lambeth (1980) 112 Cal.App.3d 495, 499-501.)
Under the facts of this case, counsel could reasonably conclude that asserting appellant’s drug and alcohol use as a circumstance in mitigation would have been futile. Trial counsel is not ineffective for failing to raise futile motions or tactics. Therefore, we cannot say there was no satisfactory explanation for counsel’s conduct. Accordingly, appellant has not established that he was denied his right to effective assistance of counsel by his counsel’s failure to argue for the imposition of a lesser sentence based on appellant’s drug and alcohol use.
DISPOSITION
Appellant’s conviction on count three is reversed. The matter is remanded for the trial court to vacate appellant’s conviction on count three. The court shall prepare an amended abstract of judgment and forward it to the appropriate authorities. In all other respects, the judgment is affirmed.