Opinion
E043147
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PINEDO SANCHEZ, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Raymond M. DiGuiseppe, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant Daniel Pinedo Sanchez appeals from a jury conviction for voluntary manslaughter with a firearm and attempted voluntary manslaughter with a firearm causing great bodily injury. He argues we should reverse his sentence and remand his case for resentencing, because the trial court failed to state reasons for imposing consecutive prison sentences.
FACTUAL AND PROCEDURAL BACKGROUND
Testimony presented at trial indicated defendant shared his home with his sister and her children, his sisters boyfriend, and the boyfriends two brothers, Claudio, who was 23, and Hector, who was 16. There was conflict in the home because defendant did not get along with Claudio and Hector and wanted them to move out.
On April 25, 2005, defendant entered the residence and argued with Claudio and Hector, who were sitting on sofas watching television. Defendant was angry and went outside. He returned a few minutes later with a .22 rifle and fired it at both Claudio and Hector from approximately six feet away. Defendant then went to a nearby fire station and told a firefighter he shot two people in the house across the street. Hector was hit with a bullet in his chest and died on the scene. A bullet also hit Claudio in the shoulder, and he spent a month in the hospital recovering from his injury.
In his defense, defendant presented several witnesses who testified Hector and Claudio repeatedly insulted and mistreated him so badly that he suffered from posttraumatic stress syndrome. Friends of defendant also testified he was not a violent person.
A jury convicted defendant of voluntary manslaughter (Pen. Code, § 192, subd. (a)) (count 1) and attempted voluntary manslaughter (§§ 664, 192, subd. (a)) (count 2). The jury also found true the allegations that defendant personally used a firearm as to both counts (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)), and as to count 2, that defendant personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).)
On count 1, the trial court sentenced defendant to the middle term of six years, plus the middle term of four years for the firearm enhancement, for a total of 10 years in state prison. On count 2, the trial court imposed a consecutive, subordinate term of one year. The court then added a 16-month consecutive term for the firearm enhancement, plus a one-year consecutive term for the great bodily injury enhancement. As a result, the total term imposed on count 2 was three years four months. Therefore, defendant is now serving a total sentence of 13 years four months in state prison.
DISCUSSION
Defendant argues the trial court erred by imposing consecutive sentences without stating its reasons for doing so on the record; as a result, defendant contends we should remand the case to the trial court for resentencing. Because defendant did not specifically object on this ground, the People argue defendant forfeited any claim of error by the trial court in failing to state its reasons for imposing consecutive sentences.
The record shows that on May 8, 2007, defendant submitted a sentencing memorandum arguing there were mitigating factors favoring concurrent rather than consecutive sentences. Defendant argued concurrent sentences would be appropriate because the shootings were "dependent on each other" since "[b]oth brothers acted as one to provoke [defendant] and [defendant] reacted to both brothers." Defendant further argued the shootings did not involve separate acts of violence as they were committed within seconds of each other, suggesting "a single period of aberrant behavior."
The People submitted a sentencing memorandum on May 10, 2007. The People argued consecutive sentences would be appropriate because the shootings involved two victims and two separate acts of violence. According to the People, there were two separate acts of violence because defendant had to point his weapon at two different victims and pull the trigger. At the sentencing hearing on May 11, 2007, the trial court stated it had considered the parties sentencing memoranda, as well as the probation report. The court then announced a tentative sentence, indicating it intended to impose consecutive terms rather than the concurrent terms "as requested by the defense." Although the trial court did not state detailed reasons for the tentative sentence, it did state in pertinent part as follows: "I see from reviewing the Peoples memorandum, thats largely in accord or in agreement with what the People have requested."
Thereafter, the trial court asked whether the defense had any further argument for the court to consider. Defense counsel responded as follows: "Your Honor, I dont believe so. I will be submitting on the memorandum that I submitted already with the court that, I know, the court has already had an opportunity to review. And the court, obviously, sat through the trial and heard the testimony of the several witnesses who came up to the stand and testified regarding [defendants] nonviolent character, and so forth. At this time, Ill be submitting to the courts tentative."
Section 1170, subdivision (c), provides that the trial court "shall state the reasons for its sentence choice on the record at the time of sentencing." "[T]he judge must state in simple language the primary factor or factors that support the exercise of discretion. . . ." (Cal. Rules of Court, rule 4.406(a).) The reasons "must be delivered orally on the record." (Ibid.) "The reasons cannot be incorporated by reference" to the grounds listed in a sentencing memorandum or probation report. (People v. DeLoach (1989) 207 Cal.App.3d 323, 339.) Here, the trial court merely indicated agreement with the sentence requested in the Peoples sentencing memorandum. We therefore agree with defendants contention the trial court did not adequately state its reasons for imposing consecutive terms on the record.
We also agree with defendants contention his counsel did not effectively object when the trial court failed to clearly articulate its reasons for imposing consecutive terms. Although counsel indicated a continuing objection to the tentative sentence based on the reasons stated in the sentencing memorandum, counsel did not specifically object to the trial courts failure to articulate adequate reasons. Defendant therefore waived his appeal of the trial courts failure "to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353.)
Alternatively, defendant cites the Supreme Courts decision in Strickland v. Washington (1984) 466 U.S. 668 (Strickland), and argues his trial counsels failure to object constituted ineffective assistance of counsel under the Sixth Amendment. Defendant argues there were a number of mitigating factors favoring concurrent rather than consecutive terms. As a result, defendant believes it is probable the court would have imposed concurrent terms if counsel objected on the record during the sentencing hearing. We disagree.
A cognizable claim of ineffective assistance of counsel requires a showing "counsel made errors so serious that counsel was not functioning as the `counsel guaranteed by the Sixth Amendment." (Strickland, supra, 466 U.S. at p. 687.) "[T]he performance inquiry must be whether counsels assistance was reasonable considering all the circumstances." (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsels performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsels performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.) "Because we accord great deference to trial counsels tactical decisions, counsels failure to object rarely provides a basis for finding incompetence of counsel." (People v. Lewis (2001) 25 Cal.4th 610, 661.) Thus, even if defendant could establish deficient performance by counsel in failing to object when the trial court imposed consecutive sentences, a remand for resentencing would not be necessary unless we could conclude the trial court would have imposed a more favorable sentence. (People v. Alvarado (2001) 87 Cal.App.4th 178, 194-195.)
Only one relevant factor is necessary to justify a consecutive sentence. (People v. May (1990) 221 Cal.App.3d 836, 840.) Where the crimes occurred in a single transaction, the fact of multiple victims is an appropriate reason for imposing consecutive terms. (People v. Valenzuela (1995) 40 Cal.App.4th 358, 365.) Imposing consecutive terms under these circumstances ensures punishment according to culpability. (Ibid.; see also People v. Leung (1992) 5 Cal.App.4th 482, 505 [stating "the existence of multiple victims of a group of crimes against individual persons is a factor which makes the group of offenses distinctively worse and therefore justifies the imposition of consecutive terms"].) The trial court may "consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both." (People v. Calhoun (2007) 40 Cal.4th 398, 408.)
Here, defendants total exposure for the crimes committed was much greater than the sentence he is now serving. The record suggests defendant would not have received a more favorable sentence if the trial court instead used the fact of multiple victims to impose concurrent aggravated terms. As a result, we cannot eliminate the probability it was a reasonable tactical decision for counsel not to make a strong objection when the trial court indicated an intent to impose consecutive middle terms. We therefore conclude a remand is unnecessary, because it is not reasonably probable the trial court would have imposed a more favorable sentence if counsel had objected during the sentencing hearing.
DISPOSITION
The judgment is affirmed.
We Concur:
GAUT, J.
MILLER, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise indicated.