Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. CC589323 and CC590481
Duffy, J.
This case has been transferred to us from the Supreme Court (S149251) with directions that we vacate our prior decision (People v. Plascencia (Nov. 28, 2006) H029862 [nonpub.]) and reconsider the case in light of People v. French (2008) 43 Cal.4th 36 (French). In November 2005, we affirmed the judgment of conviction against defendant Jaime A. Plascencia following his plea of guilty to two separate felony complaints. In that appeal, defendant asserted, inter alia, a Blakely challenge to the court’s imposition of an upper term sentence on his conviction of presenting a false or fraudulent insurance claim (Pen. Code, § 550). He claimed that the court’s sentence deprived him of his right to a jury trial and of his right to application of the proof beyond a reasonable doubt standard under the Sixth and Fifth Amendments to the United States Constitution, respectively, as made applicable to the states by the Fourteenth Amendment. Applying the then-controlling law on the issue, People v. Black (2005) 35 Cal.4th 1238 (Black I), we rejected defendant’s constitutional challenge.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
All further statutory references are to the Penal Code.
In accordance with the Supreme Court’s direction, we reconsider the matter in light of French, supra, 43 Cal.4th 36, and conclude that the court erred in imposing the upper term sentence and that this error was not harmless. We therefore reverse the judgment and remand the case to the trial court for the limited purpose of resentencing.
The Supreme Court’s holding in French, supra, 43 Cal.4th 36, does not impact defendant’s two other challenges to the judgment, namely, that (1) defendant received ineffective assistance of counsel because of counsel’s failure to object to the imposition of consecutive sentences, and (2) the court erred under section 654 by failing to stay imposition of the sentence imposed for the conviction of using personal identification of another without authorization (§ 530.5). Therefore, parts II and III of our Discussion below are substantively identical to those sections in our prior opinion.
These background facts are taken from the Probation Report.
I. Case Number CC590481
Between 1985 and 1995, defendant was married to Susana Plascencia; they had two children together. Defendant was ordered to pay child support for the two children of $1,255 per month. As of April 2005, he was $133,187.03 in arrears.
Between 1989 and 1994, defendant also had a relationship with Bertha G.; they had three children together. He was ordered to pay child support of $1,641 per month for those three children. He owed a total of $300,400.79 in unpaid child support as of April 2005.
From March 2001 to May 2005, defendant used his minor son’s name and/or social security number while he was employed at various construction companies. He was employed for nearly the entire period, and his total wages during that time were $126,303.63. Defendant had also used his son’s social security number to acquire credit cards and loans. In September 2002, a credit report revealed outstanding balances on several credit cards, a loan for $7,923, and a vehicle loan for $37,000. The credit report also listed two other vehicle loans that had been secured using the name of defendant’s minor son that had been paid off. After his arrest in Las Vegas, defendant admitted using his son’s name and social security number to avoid having to pay child support.
II. Case Number CC589323
After defendant’s coworker at an asphalt plant in Las Vegas severed the tip of his finger in a workplace accident, defendant purchased the recovered fingertip for $100. He told his coworker that he would have his wife (Anna Ayala) put it in some food.
On March 22, 2005, Ayala and other family members went to a Wendy’s restaurant on Monterey Road in San Jose and ordered chili. (Defendant was not present at that time.) After being served, Ayala claimed to have bitten into a fingertip found in her chili. She showed the fingertip to other restaurant patrons and warned them not to eat the chili. Ayala retained an attorney and garnered a great deal of publicity for her alleged injury. At some point, defendant told his coworker that Ayala had placed the fingertip in the chili; he offered the coworker a quarter million dollars (from the anticipated lawsuit) in exchange for his silence about what Ayala had done with the fingertip.
The Wendy’s corporation lost an estimated one million dollars per day for at least a month. Sales were down at various Wendy’s locations, and many employees lost significant wages and bonuses.
PROCEDURAL BACKGROUND
On May 3, 2005, defendant was charged by a six-count felony complaint in Santa Clara County case number CC590481. He was charged with four counts of abandonment or nonsupport of his minor children (Vanessa, Alejandro, Ariana and James; counts 1-4) in violation of section 271a. He was also charged with false personation (§ 529; count 5,), and with using personal identifying information without authorization (§ 530.5; count 6).
On May 24, 2005, defendant was charged by a second amended felony complaint in Santa Clara County case number CC589323, with one count of presentation of a false or fraudulent insurance claim (§ 550), and one count of attempted grand theft (§§ 664/484-487, subd. (a)). The complaint alleged further that in the commission of the crimes charged in both counts, defendant damaged and destroyed property of a value exceeding $2,500,000 (§ 12022.6, subd. (a)(4)).
Defendant’s wife, Ayala, was also charged in this complaint. She is not a party to this appeal. We note, however, that an appeal from a judgment of conviction by defendant’s wife was decided by this court after the prior opinion in defendant’s appeal was filed. (People v. Ayala (2007) 155 Cal.App.4th 604, review granted Nov. 28, 2007, S157148, review dism. Jun. 11, 2008.)
On September 9, 2005, defendant pleaded guilty to all eight counts charged in the two cases. He also admitted the enhancements charged in case number CC589323. Sentencing memoranda were filed by both sides.
On January 18, 2006, the trial court sentenced defendant to a total term of 12 years, four months. In case number CC589323, the court sentenced defendant to the five-year upper term for presentation of a false insurance claim, plus a four-year consecutive term for the excessive takings enhancement, and stayed sentence under section 654 for attempted grand theft. In case number CC590481, the court sentenced defendant to eight-month consecutive terms for the four nonsupport counts and the false personation count, and to a two-year concurrent term for using personal identifying information.
Defendant filed a timely appeal. We filed our original opinion in this appeal on November 28, 2005, rejecting defendant’s three claims of error and affirming the judgment. Defendant filed a petition for review, which the Supreme Court granted on February 7, 2007. On June 11, 2008, the high court ordered that the matter be transferred to this court for reconsideration of the appeal in light of French, supra, 43 Cal.4th 36.
After transfer of the case, defendant filed a supplemental opening brief. The Attorney General elected not to file a supplemental brief.
DISCUSSION
I. Imposition of Upper Term
In imposing the upper term of five years in prison on defendant’s conviction in case number CC589323 for violation of section 550 (presentation of a fraudulent insurance claim), the trial court cited two factors in aggravation, as provided in rule 4.421 of the California Rules of Court: (1) defendant acted with a high degree of callousness, and (2) the crime demonstrated planning and sophistication. Defendant asserts that under Blakely, supra, 542 U.S. 296, he was deprived of his Sixth and Fourteenth Amendment right to a jury trial and his Fifth and Fourteenth Amendment right to application of the proof beyond a reasonable doubt standard when the trial court imposed this aggravated sentence. We conclude, based upon the application of the high court’s recent decision in French, supra, 43 Cal.4th 36 that defendant’s challenge has merit: there was prejudicial Blakely error requiring reversal.
“Circumstances in aggravation include factors relating to the crime and factors relating to the defendant. [¶] . . . [¶] Factors relating to the crime, whether or not charged or chargeable as enhancements include that: [¶] (1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; [¶] . . . [¶] (8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism; . . .” (Cal. Rules of Court, rule 4.421(a).)
A. Whether There Was Blakely Error
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held unconstitutional a law that permitted an enhancement that could have resulted in potentially double the maximum sentence for possession of a firearm in the event that the judge determined by a preponderance of the evidence that a hate crime had been committed. It concluded that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) This principle, the court explained, derives from two constitutional rights, namely, the right to trial by jury, and the prohibition against depriving a person of liberty without due process of law. (Id. at pp. 476-477; see also Ring v. Arizona (2002) 536 U.S. 584, 603-609.)
In Blakely, supra, 542 U.S. 296, the Supreme Court considered Washington determinate sentencing laws under which the trial court had determined that the defendant “had acted with ‘deliberate cruelty’ ” (id. at p. 298), and accordingly had “imposed an exceptional sentence of 90 months—37 months beyond the standard maximum.” (Id. at p. 300.) The Supreme Court concluded that the statute was unconstitutional: “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Id. at pp. 303-304.) The judge had relied on a fact not found by the jury or admitted by the defendant; accordingly the Supreme Court concluded that the sentence in Blakely was invalid. (Id. at p. 304; see also United States v. Booker (2005) 543 U.S. 220 (Booker) [Blakely holding found applicable to Federal Sentencing Guidelines].)
In Black I, supra, 35 Cal.4th 1238, the California Supreme Court considered the effect of Blakely and Booker on upper term sentencing under California’s determinate sentencing law (DSL). The trial court had imposed an upper term sentence of 16 years, based upon “ ‘the nature, seriousness, and circumstances of the crime.’ ” (Black I, supra, at p. 1245.) The Supreme Court, rejecting the defendant’s Blakely challenge, held that the imposition of an upper term sentence under California’s DSL was not unconstitutional, reasoning that “the upper term is the ‘statutory maximum’ for purposes of Sixth Amendment analysis. The jury’s verdict of guilty on an offense authorizes the judge to sentence a defendant to any of the three terms specified by statute as the potential punishments for that offense, as long as the judge exercises his or her discretion in a reasonable manner that is consistent with the requirements and guidelines contained in statutes and court rules.” (Black I, supra, at pp. 1257-1258.)
The defendant in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), received an upper term sentence of 16 years under California’s DSL, the sentencing judge having found six aggravating factors warranting the sentence. (Id. at pp.___ [127 S.Ct. at pp. 860-861].) The appellate court rejected the defendant’s Blakely challenge, and the California Supreme Court denied review, having decided Black I nine days earlier. (Cunningham, supra, at p. ____ [127 S.Ct. at p. 861].) Justice Ginsburg, writing for the majority, noted: “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp.____ [127 S.Ct. at pp. 863-864].) Accordingly, the court—overruling Black I—concluded that “aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, at p.___ [127 S.Ct. at p. 868].) The Cunningham court thus concluded that the California Supreme Court’s reasoning in Black I was at odds with the principles of Apprendi and Blakely: “Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.” (Cunningham, supra, at p. ___ [127 S.Ct. at p. 870].)
In People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court reexamined the propriety of the defendant’s upper term sentence in light of Cunningham. The court acknowledged Cunningham’s disagreement with Black I’s holding that California’s DSL did not violate the Sixth Amendment insofar as it permitted the sentencing judge to impose an upper term sentence based upon factors not determined by a jury beyond a reasonable doubt. (Black II, supra, at p. 808.) But the court in Black II concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) It therefore held “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Because the judge based the upper term sentence upon a factor (i.e., force used to commit sex crime) that was the basis for the jury’s prior true finding on a special allegation, the court in Black II held that the upper term sentence was not unconstitutional. (Id. at pp. 816-817.)
In People v. Sandoval (2007) 41 Cal.4th 825, 832 (Sandoval), the defendant received an upper term sentence for a voluntary manslaughter conviction. The factors in aggravation cited by the trial court in support of the upper term sentence were that the crime involved great violence, the defendant exhibited extremely callous behavior, there was planning and premeditation, and the victims were very vulnerable. (Id. at p. 837.) As noted by the Supreme Court in finding that there was Blakely error, “[n]one of the aggravating circumstances cited by the trial court come within the exceptions set forth in Blakely. [The d]efendant had no prior criminal convictions. All of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime; none were admitted by [the] defendant or established by the jury’s verdict.” (Sandoval, supra, at pp. 837-838.)
Lastly, in French, supra, 43 Cal.4th at page 40, the defendant, after pleading no contest to six counts of lewd and lascivious conduct with a child (§ 288, subd. (a)), received a sentence that included an upper term on one of the counts. The court based its selection of the upper term on the factor in aggravation (Cal. Rule of Court, rule 4.421(a)(11)) that “ ‘[the] defendant took advantage of a position of trust and confidence’ ” in the commission of the crime. (French, supra, at p. 43.) The Supreme Court concluded that the imposition of the upper term sentence violated the defendant’s Sixth Amendment jury trial rights because it was based on an aggravating circumstance found by the trial court that was “neither admitted by [the] defendant nor established by a jury verdict . . . .” (French, supra, at p. 52.)
The Supreme Court in French also held that the fact that the defendant entered into a plea agreement that included the upper term as the maximum sentence did not result in the defendant having “implicitly admit[ted] that his conduct could support that term.” (French, supra, 43 Cal.4th at p. 48.) It reasoned, “A defendant who enters into an agreement to plead guilty or no contest, with a sentence to be imposed within a specified maximum, reasonably expects to have the opportunity to litigate any matters related to the trial court’s choice of sentence—including the existence of aggravating and mitigating circumstances—at the sentencing hearing.” (Id. at p. 49.)
Similarly, here, defendant at the time he entered his guilty plea acknowledged that he could receive a maximum sentence of 13 years. Like the defendant’s plea in French, defendant’s acknowledgment of the possibility of receiving a maximum sentence that would include an upper term did not constitute an admission as to the appropriateness of the imposition of such a sentence without a jury finding beyond a reasonable doubt the existence of facts in aggravation to support it.
There is merit to defendant’s Blakely challenge here, based upon application of the post-Black I authorities discussed above. The sentencing provision with which we are concerned specifies that the crime of presenting a false or fraudulent insurance claim is “punishable by imprisonment in the state prison for two, three, or five years.” (§ 550, subd. (c)(1).) Thus, under Cunningham, the middle term of three years was the “statutory maximum” for Sixth Amendment purposes under Blakely. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) And the basis upon which the trial court imposed the upper term here did not include at least “one legally sufficient aggravating circumstance . . . found to exist by the jury, . . . admitted by the defendant, or . . . justified based upon the defendant's record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Thus, the aggravating factors relied on by the trial court—i.e., “the crime involved acts disclosing a high degree of callousness . . . [¶] . . . [and t]he manner in which the crime was carried out, indicate[d] planning and sophistication”—were not ones for which an upper term sentence could be constitutionally imposed by the sentencing court. (French, supra, 43 Cal.4th at p. 52; Sandoval, supra, 41 Cal.4th at pp. 837-838.) We therefore conclude that the court erred by imposing the upper term of five years as provided in section 550, subdivision (c)(1) for the crime of presenting a false or fraudulent insurance claim.
B. Whether Error Was Prejudicial
Having found that Blakely error occurred here, we must next determine whether the error was prejudicial. The deprivation of the right to a jury trial on the issue of aggravating circumstances for sentencing is not structural error; rather, it is reviewed under a Chapman harmless error standard. (Sandoval, supra, 41 Cal.4th at p. 838; see also Washington v. Recuenco (2006) 548 U.S. 212 [Blakely sentencing error is not structural error mandating reversal without consideration of whether error is harmless].) The California Supreme Court recently confirmed that this is the proper approach in reviewing Blakely error. (French, supra, 43 Cal.4th at pp. 52-53.) Under this analysis, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, at p. 838.) Thus, “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
Chapman v. California (1967) 386 U.S. 18.
In Sandoval, supra, 41 Cal.4th at page 837, the aggravating factors relied upon by the trial court were that the crime “ ‘involve[ed] a great amount of violence. This was also incredibly callous behavior. . . . The victims were particularly vulnerable . . . . [The defendant’s] actions showed planning, premeditation . . . .’ ” The Supreme Court examined the record to determine whether it, as the reviewing court, could conclude that a jury would have found true beyond a reasonable doubt one or more of the aggravating circumstances found by the trial court. (Id. at pp. 838-843.) While the court acknowledged that there was significant evidence supporting the aggravating factors, it held that the Sixth Amendment error was not harmless beyond a reasonable doubt under the above-enunciated standard. (Id. at p. 843.)
And in French, supra, 43 Cal.4th at page 54, the Supreme Court found that the evidence in support of the court’s finding that the defendant abused a position of trust was not “overwhelming,” and noted that the defendant’s failure to specifically contest that finding did not compel the conclusion that the error was harmless. Moreover, the court emphasized that, in contrast to Sandoval, supra, 41 Cal.4th 825, where the upper term sentence was imposed after a jury trial, the court sentenced the defendant after his no contest plea. “When a defendant pleads guilty or no contest, a prejudice assessment is even more problematic, because the record generally does not contain a full presentation of evidence concerning the circumstances of the offense. The statutory scheme that governs a sentencing proceeding does not require an evidentiary hearing; rather, it permits the trial court to base its sentencing decision on ‘the record in the case, the probation officer’s report, other reports . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, . . . and any further evidence introduced at the sentencing hearing.’ (§ 1170, subd. (b).)” (French, supra, at p. 54.) After noting that there had been no preliminary hearing from which it could be ascertained how the witnesses would have testified at trial and that the facts supporting the offenses recited in the probation report were “based upon multiple hearsay” (ibid.), the Supreme Court held that the Blakely error was not harmless beyond a reasonable doubt. (Ibid.)
We similarly conclude that the Sixth Amendment error here was not harmless. In contrast to Sandoval, where there was an extensive record from a jury trial, here the only record was a one and one-half page summary of the offenses (counts 1 and 2) in the probation report. Like the circumstances in French, supra, 43 Cal.4th 36, here there is simply an insufficient record upon which to find beyond a reasonable doubt that a jury “ ‘unquestionably would have found true at least a single aggravating circumstance’ ” (id. at p. 53)—in this instance, that either defendant acted with a high degree of callousness, or the crime demonstrated planning and sophistication. As the court noted in Sandoval, “[T]he reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. Although the aggravating circumstances found by the trial court were based upon the evidence presented at trial, they were not part of the charge and were not directly at issue in the trial. Aggravating circumstances are based upon facts that are not elements of the crime. [Citation. The d]efendant thus did not necessarily have reason—or the opportunity—during trial to challenge the evidence supporting these aggravating circumstances unless such a challenge also would have tended to undermine proof of an element of an alleged offense.” (Sandoval, supra, 41 Cal.4th at p. 839.) That observation holds even greater meaning here where there was no trial and the only record available in our harmless-error analysis is a summary prepared by a probation officer in contemplation of a sentencing hearing.
The Blakely error here was not harmless beyond a reasonable doubt. The matter must be remanded to the trial court for resentencing.
II. Consecutive Sentences
Next, defendant asserts that his trial counsel was ineffective because he failed to object to the trial court’s decision to impose consecutive sentences on defendant’s four convictions for nonsupport of his children.
“The constitutional standard for determining whether counsel has failed to provide adequate legal representation is by now well known: First a defendant must show his or her counsel’s performance was ‘deficient’ because counsel’s ‘representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.’ [Citations.] Second, he or she must then show prejudice flowing from counsel’s act or omission. [Citations.] We will find prejudice when a defendant demonstrates a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Gurule (2002) 28 Cal.4th 557, 610.)
Defendant pleaded guilty to four counts of violating section 271a (nonsupport of a child) from 2002 to 2005, for four of his children. In sentencing him to eight-month consecutive terms on each of the four counts, the trial court found that “each of these offenses are separate—separate offenses and therefore [the court] will impose consecutive terms as prescribed by law as to each of them.”
In asserting that his attorney should have objected to the terms being imposed consecutively, defendant maintains that the trial court’s reason—separate offenses—is not really encompassed within the California Rules of Court, rule 4.425. The pertinent part of rule 4.425, specifying criteria affecting the decision to impose consecutive rather than concurrent sentences, includes: “(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.” According to defendant, he had only one scheme in mind, i.e., to avoid paying child support that he could not afford. He points to the case of People v. Robinson (1992) 11 Cal.App.4th 609, disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16, where the reviewing court concluded that several sexual acts committed with a minor over a two month period were not necessarily committed at separate times and reasonably could have constituted but one course of conduct. (Robinson, supra, 11 Cal.App.4th at p. 614.)
However, the decision to impose concurrent or consecutive terms is within the trial court’s discretion. (§ 669; People v. Bradford (1976) 17 Cal.3d 8, 20.) The rules of court are guidelines for exercising this discretion and are not mandatory in a specific application. (See People v. Calderon (1993) 20 Cal.App.4th 82, 86-87.)
Here, each child was individually harmed by defendant’s failure to pay child support to their mothers over a period of years. If each offense involved a separate victim who suffered a separate loss, consecutive sentences could properly be imposed. (See People v. Leung (1992) 5 Cal.App.4th 482, 506, 508; see also People v. Neder (1971) 16 Cal.App.3d 846, 852.)
Defendant attempts to import the trial court’s statement of factors in mitigation and aggravation as applied to the sentence in the insurance fraud case to demonstrate that the sentencing factors balanced, and thus the court was likely to sentence him to concurrent terms in this child support case if his counsel had objected. We disagree.
Because the trial court had the discretion to impose consecutive sentences here, and because the court stated that it had read and considered all the sentencing memoranda submitted, defense counsel was not deficient by failing to object. “[F]ailure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) Moreover, in this case, defendant cannot show any reasonable likelihood that had counsel objected, the trial court would have imposed a lesser sentence. Consecutive sentences on separate offenses against separate victims were well within the discretion of the trial court.
III. Section 654
Defendant’s last claim of error is that the court was required, under section 654, to stay the sentence imposed on his conviction for violation of section 530.5 (using personal identifying information without authorization). He states that he “had only a single goal: To use his son’s identity in order to obtain credit and loans.”
Section 654 states, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
In People v. Beamon (1973) 8 Cal.3d 625, our Supreme Court explained, “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (Id. at p. 639.) The assessment of the defendant’s intent and objective is a factual question for the trial court and that finding will be upheld on appeal if there is substantial evidence to support it. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Green (1996) 50 Cal.App.4th 1076, 1085.) As a reviewing court, we defer to the factual findings of the trial court, whether those findings are express or implied, as evidenced by the court’s decision to impose multiple punishments. (People v. Coleman, supra, at p. 162; People v. Green, supra, at p. 1085.)
Here the trial court imposed an eight-month sentence for defendant’s violation of section 529 (false personation) and a concurrent eight-month sentence for defendant’s violation of section 530.5 (using personal identification information without authorization). Although both crimes involved the illegal use of defendant’s son’s name and social security number, the false personation count involved the use of that information to obtain credit cards and loans. The use of personal identification count involved defendant’s fraudulent use of his son’s social security number for employment purposes in order to avoid garnishment of his wages for child support arrearages. These two crimes involved different intents and objectives and were committed against different victims. We have no trouble concluding that the trial court correctly sentenced defendant on both counts.
DISPOSITION
The judgment is reversed and remanded to the trial court for the limited purpose of resentencing consistently with this opinion, Blakely, supra, 542 U.S. 296, Cunningham, supra, 549 U.S. 270, Sandoval, supra, 41 Cal.4th 825, and French, supra, 43 Cal.4th 36.
WE CONCUR: Mihara, Acting, P.J., McAdams, J.