Filed 4/1/15 P. v. Pacheco CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039268
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS121602)
v. ORDER MODIFYING OPINION
AND DENYING PETITION FOR
VICTOR PACHECO, JR., REHEARING
Defendant and Appellant.
BY THE COURT:
It is ordered the opinion filed herein on March 4, 2015, be modified as follows:
On page 9, remove footnote 2.
On page 10, first full paragraph, replace the third sentence that starts with “As Pacheco
acknowledges” with the following:
As Pacheco acknowledges, “the bruise on [Doe’s] forehead”—evidenced by
Officer Lynd’s testimony and the photographs admitted at trial—“corroborated Doe’s
testimony that [Pacheco] hit her.”
There is no change in judgment. The petition for rehearing is denied.
Dated: __________________________
Premo, J.
Rushing, P.J. Elia, J.
Filed 3/4/15 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039268
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS121602)
v.
VICTOR PACHECO, JR.,
Defendant and Appellant.
During a fight, defendant Victor Pacheco, Jr., pulled the mother of his children to
the floor by her hair, punched her in the face, and stomped on her foot. Their two
daughters witnessed the incident. Pacheco was charged with multiple crimes in
connection with the incident. Following a trial, a jury found him guilty of (1) infliction
of corporal injury on a cohabitant/parent of child (Pen. Code, § 273.5, subd. (a));1 (2)
assault by force likely to produce great bodily injury (§ 245, subd. (a)(4)); (3) dissuading
a witness from reporting a crime (§ 136.1, subd. (b)(1)); (4) possession of ammunition by
a felon (§ 30305, subd. (a)(1)); (5) misdemeanor false imprisonment; and (6)
misdemeanor child endangerment.
On appeal, Pacheco maintains there was insufficient evidence to support his
conviction for assault by force likely to produce great bodily injury. He also contends the
trial court erred by failing to stay his sentence for dissuading a witness under section 654
and that, alternatively, the trial court erroneously believed it was required to impose a
1
All further statutory references are to the Penal Code unless otherwise specified.
consecutive sentence for that offense. We shall affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pacheco Is Charged
On October 9, 2012, the Monterey County District Attorney filed an information
charging Pacheco with infliction of corporal injury on a cohabitant/parent of child (§
273.5, subd. (a), count 1); assault by force likely to produce great bodily injury (§ 245,
subd. (a)(4), count 2), false imprisonment by violence (§ 236, count 3); dissuading a
witness from reporting a crime (§ 136.1, subd. (b)(1), count 4); child endangerment (§
273a, subd. (a), count 5); possession of ammunition by a felon (§ 30305, subd. (a)(1),
count 6); and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 7). The
information alleged that Pacheco had a prior strike conviction (§ 1170.12, subd. (c)(1)).
B. Evidence Adduced at Trial
Pacheco was tried before a jury in December 2012.
1. Jane Doe
Jane Doe testified that she used to date Pacheco with whom she has two daughters,
aged two-and-a-half and one-and-a-half. Doe began dating Pacheco in September 2009
and got pregnant shortly thereafter. In April 2010, Doe moved into a home in Salinas
that Pacheco shared with a number of family members and renters.
Doe testified that Pacheco went to his cousin’s funeral on the morning of August
9, 2012. Pacheco was gone at a family gathering following the funeral for much of the
day and Doe became worried that he would come home drunk or high and become
violent. She was concerned because Pacheco had told her some of his cousins “did meth”
and he had a history of hitting her when he was under the influence. Doe tried to reach
Pacheco by calling his cell phone and, when he did not answer, by calling his sister and
brother. Eventually she spoke with him on the phone and they fought about whether he
should come home.
2
Pacheco arrived home shortly before 6:00 that evening. According to Doe, he
barged into their bedroom where she was sitting with their daughters, who were napping.
He yelled “What the ‘F’ is your problem? Why are you calling me so much?” Doe
testified that Pacheco grabbed her by the hair and threw her to the floor. Doe grabbed the
phone, which was nearby, and told Pacheco she was going to call the police. He grabbed
the phone away and threw it on the wood floor, causing the battery to fly out. At the
time, Doe believed the impact had broken the phone. Their younger daughter began
crying and Pacheco picked her up. While he did so, Doe fled to the living room. She
attempted to leave the house but Pacheco blocked her way. She then returned to the
bedroom to retrieve her purse. There, Pacheco punched her in the face with a closed fist,
while still holding their daughter. Doe testified that she “wasn’t expecting” the punch.
Doe retreated to the living room where the two continued arguing. Pacheco stomped on
Doe’s foot and blocked the door with his body so she could not leave. Meanwhile, their
older daughter had begun to cry. Doe convinced Pacheco to go check on the girl and ran
out of the house when he did.
Pacheco caught up with Doe in the driveway. He told her to go back inside and
tried to drag her back to the house by the arm. Doe got down on the pavement in an
effort to resist him. Her head bumped on the ground a few times as he tried to drag her
into the house. Doe testified that she was screaming for help and Pacheco tried to calm
her down. Eventually, he left her and went inside to check on the children.
At that point, Doe--wearing only a t-shirt and boxers--ran to a payphone a block
away. She called 9-1-1 and said she needed an officer because her boyfriend had hit her.
Pacheco approached Doe while she was on the phone with the 9-1-1 operator and tried to
persuade her to return to the house. He walked away before officers arrived.
When the officers arrived, they took photographs of Doe’s injuries which were
admitted into evidence at trial. Doe took additional pictures the following day, which
also were admitted into evidence at trial. Doe testified that her face was bruised where
3
Pacheco hit her. She also had bruising on her arm where he grabbed her and tried to drag
her into the house and on her foot where he stomped on it. Doe returned to the house
with the officers. Pacheco and the girls were gone. Doe opened Pacheco’s safe for the
officers; it contained three bullets.
Doe testified that Pacheco had been violent with her frequently during their
relationship, including hitting her in the face and kicking her, both while she was
pregnant.
2. Officer Josh Lynd
Josh Lynd, a Salinas police officer, testified that he responded to Doe’s 9-1-1 call
on August 9, 2012. He observed swelling above her left eye, abrasions on her arms, and
redness on her foot. Back at the house, he retrieved three .357-caliber rounds from a safe
in which Doe said Pacheco sometimes stored firearms. He also observed a cordless
phone with the battery out and the back missing.
3. Delsi Espinoza
Defense witness Delsi Espinoza testified that in August 2012 she was renting a
room in the Salinas home where Pacheco and Doe lived. Espinoza observed part of the
fight between Pacheco and Doe. She was in the kitchen and saw Doe sitting on the
driveway crying; Pacheco was standing over her talking to her. Espinoza testified that
she watched the couple for about 20 minutes and did not see Pacheco touch Doe.
Eventually, Pacheco came back inside and asked Espinoza to watch the two girls. She
did so for the approximately five minutes while he was gone. When Pacheco returned to
the house Espinoza locked herself in her room. She remained there when Doe returned
with the police.
4. Doroteo Ochoa
Doroteo Ochoa, another renter in the Pacheco home, also testified for the defense.
He testified that he heard Pacheco and Doe arguing on the day of the August 2012
incident. He heard someone run outside and went outside to see what was happening.
4
He saw Doe and Pacheco, who he watched for about the next 15 minutes. During that
time, Doe was crying and saying she wanted to leave; Pacheco told her to stay for the
girls and tried to pick her up. Ochoa did not see Pacheco hit Doe.
5. Pacheco
Pacheco testified in his own defense. He stated that when he arrived home from
the funeral on August 9, 2012, he asked Doe--in reference to her many calls--why she
was overreacting. He stated: “she tried to get up, and I just told her to calm down. As
soon as she stood up, I guess she met my hands and she thought I was holding her down
or pushing her down, so she just got really aggressive and started just screaming and
kicking.” He said he tried to “calm her down with [his] hands” and denied hitting her.
According to Pacheco, it was Doe who threw down the phone in frustration because it did
not work.
Pacheco testified that Doe threw herself down on the driveway outside and made
“a scene for the neighbors to see.” He explained that he tried to pick her up but she was
“just dead weight.” After about 10 minutes he went back inside. He then went back
outside and found Doe at the payphone down the street. He testified that, there, he tried
to calm her down and told her not to “make any more drama.” When she refused to come
home, he walked back to the house, got the girls, and returned to the family gathering
with them.
Pacheco denied ever hitting Doe during their relationship. He also denied that the
bullets found in the safe belonged to him.
C. Verdict, Sentencing, and Appeal
The jury returned its verdict on December 14, 2012, after deliberating for one day.
It found Pacheco guilty of infliction of corporal injury on a cohabitant/parent of child
(count 1), assault by force likely to produce great bodily injury (count 2), dissuading a
witness from reporting a crime (count 4), and possession of ammunition by a felon (count
6). As to count 3, the jury acquitted defendant of false imprisonment by violence but
5
found him guilty of the lesser included offense of misdemeanor false imprisonment. The
jury acquitted Pacheco of child endangerment, as charged in count 5, but found him
guilty of the lesser included offense of misdemeanor child endangerment. The jury also
acquitted Pacheco of possession of a firearm by a felon as charged in count 7. It found
true the prior strike allegation.
Pacheco filed a motion to preclude multiple punishment, arguing that section 654
barred the court from imposing separate sentences on counts 1, 2, and 4 because the
infliction of corporal injury on Doe (count 1), the assault of Doe (count 2), and the
destruction of the phone (count 4) were part of an indivisible course of criminal conduct.
At the sentencing hearing on January 25, 2013, the trial court agreed with respect to
counts 1 and 2. The court also concluded that section 654 applied to the misdemeanor
false imprisonment conviction (count 3). However, the court concluded that section 654
did not apply to count 4. With respect to that count the court stated: “The 136.1 is that
strange crime, I suppose is one way of looking at it. Very understandably though that
requires a mandatory full mid-term consecutive [sentence], which is two years. That’s
under [section] 1170.15, I believe.”
The court sentenced defendant to a term of 11 years four months. That sentence
consisted of (1) the middle term of three years, doubled, on count 1; (2) a consecutive
middle term of two years, doubled, on count 4; and (3) a consecutive middle term of eight
months, doubled, on count 6. The court imposed a concurrent six-month term on count 5
and stayed sentence on counts 2 and 3. In sentencing Pacheco on count 4, the court
explained “the reason for consecutive sentences is not just [section] 1170.15, but there is
an entirely separate incident in this case, which is a phone booth, where he does this
thing. And that--that clearly is a distinct crime and it comes after the commission of the
other crimes and justifies a consecutive sentence, separate and apart from [section]
1170.15.”
6
Pacheco timely appealed. During the pendency of this appeal, Pacheco has sent a
number of letters to this court complaining that his appellate counsel refuses to raise
certain issues on appeal, requesting substitute appellate counsel, and suggesting his trial
counsel was ineffective. We denied the request for substitute appellate counsel and
denied the apparent request to assert an ineffective assistance of trial counsel claim
without prejudice to Pacheco submitting a proper petition for habeas corpus. We
enclosed a Judicial Council form No. MC-275 with that order. However, Pacheco has
not filed a petition for habeas corpus.
II. DISCUSSION
A. Sufficiency of the Evidence
Pacheco contends there was insufficient evidence to support his conviction on
count 2, assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)).
Pacheco maintains the evidence shows he inflicted only minor bruising, not great bodily
injury, such that his conviction must be modified to reflect a conviction of the lesser
included offense of misdemeanor assault (§ 240).
1. Standard of Review
“When considering a challenge to the sufficiency of the evidence to support a
criminal conviction, we review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence--that is, evidence
which is reasonable, credible, and of solid value--such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.” (People v. Cortes (1999) 71
Cal.App.4th 62, 71.) “In making this determination, we do not reweigh the evidence,
resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (Ibid.) Nor
do we ask whether we “ ‘believe[] that the evidence at the trial established guilt beyond a
reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v.
7
Virginia (1979) 443 U.S. 307, 319.)
2. Substantive Law
“Great bodily injury,” as that phrase is used in section 245, means “bodily injury
which is significant or substantial, not insignificant, trivial or moderate.” (People v.
McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel).) Neither physical contact nor
actual injury is a required element of the offense of assault with force likely to produce
great bodily injury. (Ibid. [assault with force likely to produce great bodily injury “ ‘
“may be committed without infliction of any physical injury, and even though no blow is
actually struck.” ’ ”].) “ ‘ “The issue, therefore, is not whether serious injury was caused,
but whether the force used was such that it would be likely to cause it.” ’ ” (Ibid.)
“[W]hether the force used by the defendant was likely to produce great bodily injury is a
question for the trier of fact to decide.” (People v. Sargent (1999) 19 Cal.4th 1206,
1221.)
“That the use of hands or fists alone may support a conviction of assault ‘by
means of force likely to produce great bodily injury’ is well established.” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1028.) Whether the force used by the defendant in
striking a person with his fists was likely to cause great bodily injury depends on “the
force of the impact, the manner in which it was used and the circumstances under which
the force was applied.” (McDaniel, supra, 159 Cal.App.4th at p. 749.) Any resulting
injuries “are often highly probative of the amount of force used, [but are not] conclusive.”
(People v. Muir (1966) 244 Cal.App.2d 598, 604.)
3. Substantial Evidence Supports the Finding That Pacheco Used
Force Likely to Produce Great Bodily Injury
Pacheco’s challenge focuses on the extent of Doe’s actual injuries. “Bruises and
abrasions do not amount to great bodily injury,” he says. For that contention, he relies on
cases addressing whether the defendant in fact inflicted great bodily injury on the victim.
(People v. Harvey (1992) 7 Cal.App.4th 823 [evidence sufficient to support jury’s finding
8
that appellant intentionally inflicted great bodily injury under § 12022.7]; People v.
Beltran (1989) 210 Cal.App.3d 1295 [great bodily injury allegation under § 12022.7];
People v. Modiri (2006) 39 Cal.4th 481 [great bodily injury finding under § 1192.7, subd.
(c)(8), which incorporates similar language to § 12022.7]; People v. Cross (2008) 45
Cal.4th 58, 66 [“Proof that a victim’s bodily injury is ‘great’ . . . within the meaning of
section 12022.7--is commonly established by evidence of the severity of the victim’s
physical injury, the resulting pain, or the medical care required to treat or repair the
injury.”].) But the “essential determination” for purposes of section 245, subdivision
(a)(4) is not whether defendant actually inflicted great bodily injury, but “whether the
force [he used] was likely to produce great bodily injury.” (In re Nirran W. (1989) 207
Cal.App.3d 1157, 1161-1162, italics added (Nirran W.).) Accordingly, Pacheco’s
reliance on Harvey, Beltran, Modiri, and Cross is misplaced.
Doe testified that Pacheco pulled her to the floor by her hair, hit her in the face
with a closed fist, stomped on her foot, and attempted to drag her back into the house by
her arm, bumping her head on the pavement in the process. Doe said that her resulting
injuries included scrapes on her arms and bruises on her face, arms, and foot. Officer
Lynd confirmed that Doe was injured; he observed swelling above her left eye, abrasions
on her arms, and redness on her foot. The jury also saw photographs of Doe’s injuries.2
On this evidence, a reasonable juror could conclude Pacheco used force likely to cause
great bodily injury. (See Nirran W., supra, 207 Cal.App.3d at p. 1162 [single blow with
a fist to the victim’s head deemed sufficient to support a finding that a defendant used
force likely to produce great bodily injury]; People v. Wingo (1975) 14 Cal.3d 169, 177
[“a single errant swing by an intoxicated defendant could, under the language of the
statute, result in conviction” for assault with force likely to produce great bodily injury];
2
Those pictures are not in the record on appeal.
9
People v. Score (1941) 48 Cal.App.2d 495 [affirming § 245 conviction where defendant
struck victim with fist, then accidentally fell on him, breaking victim’s leg].)
Pacheco urges us to disregard Doe’s account of the assault in assessing the
sufficiency of the evidence, arguing that the verdict demonstrates the jury disbelieved
her. But the evidence is sufficient even absent her testimony. As Pacheco acknowledges,
“the bruise on [Doe’s] forehead”--evidenced by Officer Lynd’s testimony and
presumably the photographs admitted at trial--“corroborated Doe’s testimony that
[Pacheco] hit her.” That evidence of a single punch to the face supports the jury’s guilty
verdict on count 2. (See Nirran W., supra, 207 Cal.App.3d at p. 1162; People v. Wingo,
supra, 14 Cal.3d at p. 177.)
B. Sentencing Issues
Pacheco asserts two challenges to his sentence for dissuading a witness from
reporting a crime (count 4). First, he argues the trial court’s refusal to stay the
consecutive four-year sentence violates section 654’s proscription against multiple
punishment and his due process rights. In Pacheco’s view, the entire fight with Doe--
including breaking the phone when she stated she was going to call the police--was part
of an indivisible course of conduct and thus he should not be subject to multiple
punishments. Second, he maintains that, alternatively, the matter must be remanded for
resentencing on count 4 because the trial court did not understand that it had discretion to
impose a concurrent term. We address each challenge in turn.
1. Multiple Punishment
a. Statutory Principles and Standard of Review
Section 654 provides in relevant part, “[a]n 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.” “[I]t is well settled that section
654 applies not only where there was but one act in the ordinary sense, but also where
10
there was a course of conduct which violated more than one statute but nevertheless
constituted an indivisible transaction. [Citation.] Whether a course of conduct is
indivisible depends upon the intent and objective of the actor.” (People v. Perez (1979)
23 Cal.3d 545, 551.) If all the offenses were incident to one objective, the defendant may
not be punished for more than one. Thus, a defendant who attempts murder by setting
fire to the victim’s bedroom may not be punished for both arson and attempted murder,
because his primary objective was to kill, and the arson was the means of accomplishing
that objective and thus merely incidental to it. (Ibid.) “On the other hand, if the evidence
discloses that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for the
independent violations committed in pursuit of each objective even though the violations
were parts of an otherwise indivisible course of conduct.” (Ibid.) For example, the
objectives to drive while intoxicated and to drive with a suspended license were
separately punishable, though they occurred simultaneously. (Id. at p. 552.) The purpose
of the protection against multiple punishments is to insure that the defendant’s
punishment will be commensurate with his criminal culpability. (Id. at p. 552, fn. 4.)
Whether a defendant’s multiple crimes involved multiple objectives generally is a
question of fact for the sentencing court. (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Where, as here, the trial court makes no express findings on the issue, its imposition of
separate sentence terms may constitute an implied finding that the offenses were
divisible. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.) “A trial court’s implied
finding that a defendant harbored a separate intent and objective for each offense will be
upheld on appeal if it is supported by substantial evidence.” (People v. Blake (1998) 68
Cal.App.4th 509, 512.)
11
b. The Trial Court Did Not Err In Refusing to Stay the Sentence
on Count 4
The charge of dissuading a witness was based on the testimony of Doe and Officer
Lynd. Doe testified that, in the middle of the assault, she grabbed the phone and said she
was going to call the police. Pacheco grabbed the phone from her and threw it on the
ground, causing the battery to come out. Officer Lynd testified that when he returned to
the house with Doe the cordless phone’s battery was out and the portion of the phone that
holds the battery in place was missing.
That evidence supports two reasonable inferences regarding Pacheco’s intent.
One rationally could conclude that Pacheco’s intent in both the assault and throwing the
phone was to vent his anger at Doe and prevent her from leaving. But the evidence also
is reasonably susceptible to the inference that Pacheco had an independent objective in
throwing the phone--evading prosecution for the ongoing assault. That conclusion finds
support in Doe’s testimony that Pacheco threw the phone after Doe said she was going to
call the police. “When the evidence reasonably justifies the findings of the trier of fact,”
as it does here, “reversal is not warranted merely because the circumstances may be
reasonably reconciled otherwise.” (People v. Holly (1976) 62 Cal.App.3d 797, 804.)
Because the evidence supports a reasonable inference that defendant harbored separate
objectives, the trial court did not err in holding that section 654 does not apply. For the
same reason, the sentence does not violate Pacheco’s due process rights.
2. Consecutive Sentencing on Count 4
Pacheco contends the trial court misconstrued section 1170.15 to require the
imposition of a consecutive sentence on count 4. For the reasons discussed below, we
agree but nevertheless decline to remand for resentencing because the court gave an
independent reason for imposing a consecutive sentence, such that it is not reasonably
probable the court would impose a different sentence on remand.
12
Section 1170.15 states, in relevant part: “if a person is convicted of a felony, and
of an additional felony that is a violation of Section 136.1 or 137 and that was committed
against the victim of, or a witness or potential witness with respect to, or a person who
was about to give material information pertaining to, the first felony, . . . the subordinate
term for each consecutive offense that is a felony described in this section shall consist of
the full middle term of imprisonment for the felony for which a consecutive term of
imprisonment is imposed . . . .” As the People acknowledge, section 1170.15 does not
require the imposition of a consecutive term for a violation of section 136.1. Rather, a
trial court retains the discretion to impose a concurrent term for such a conviction.
However, where the sentencing court chooses to impose a consecutive term, section
1170.15 is triggered and requires that the sentence be the full middle term, not one-third
of the middle term as section 1170.1, subdivision (a), provides. Pacheco claims the trial
court’s comments during the resentencing hearing indicate that it did not understand this
discretion.
At sentencing, the court stated: “The 136.1 is that strange crime, I suppose is one
way of looking at it. Very understandably though that requires a mandatory full mid-
term consecutive [sentence], which is two years. That’s under [section] 1170.15, I
believe.” Alone, that comment is ambiguous; it is unclear what aspect of the sentence the
court believed to be “mandatory.” The court may have been explaining--correctly--that
when a consecutive sentence is imposed on a conviction for a violation of section 136.1,
section 1170.15 mandates that the trial court impose a full middle term sentence.
Alternatively, the court may have been expressing the incorrect view that a consecutive
sentence was mandatory.
Additional comments the court made later in the hearing convince us that the latter
is more likely. Specifically, the court gave two “reason[s] for [the] consecutive
sentence[]” on count 4: (1) “[section] 1170.15” and (2) Pacheco’s actions while Doe was
at the payphone. That statement demonstrates the court viewed section 1170.15 as a
13
rationale for imposing a consecutive sentence on count 4. But, as explained above,
section 1170.15 says nothing about the decision between consecutive and concurrent
sentences and is triggered only after the court selects a consecutive sentence.
Accordingly, we believe the trial court may have misunderstood the scope of its
discretion, and believed consecutive sentencing was mandated.
“Generally, when the record shows that the trial court proceeded with sentencing
on the erroneous assumption it lacked discretion, remand is necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Remand for
resentencing is not required, however, where it would be an idle act because it is not
reasonably probable the trial court would impose a different sentence. (People v. Coelho
(2001) 89 Cal.App.4th 861, 889-890.) Here, the trial court stated an independent reason
for imposing the consecutive sentence: the “entirely separate [payphone] incident,”
which the court deemed “a distinct crime [that came] after the commission of the other
crimes.” Given that independent basis for the sentence, it is “virtually certain the court
would impose . . . [a] consecutive sentence[] if we remanded the matter.” (Id. at p. 890.)
Pacheco contends that remand nevertheless is required because the payphone
incident cannot support the consecutive sentence because the count 4 conviction was
premised on the destruction of the house phone only. The People respond that Pacheco
forfeited that argument. We agree.
“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) The forfeiture rule applied claims
the trial court failed “to properly make or articulate its discretionary sentencing choices”
(People v. Scott (1994) 9 Cal.4th 331, 353) but not to an “ ‘unauthorized’ ” sentence,
meaning one that “could not lawfully be imposed under any circumstance in the
particular case.” (Id. at p. 354.)
14
It is undisputed that the trial court had the discretion to impose a consecutive
sentence, such that the sentence was not unauthorized. Factors relating to the decision to
impose concurrent or consecutive sentences are set forth in California Rules of Court,
rule 4.425. Among the relevant factors is whether “[t]he 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.” (Cal. Rules of Court, rule
4.425(a)(3).) Here, the trial court reasoned that the payphone incident justified a
consecutive sentence because it involved “an entirely separate incident” and occurred
“after the commission of the other crimes.” Thus, the court focused on when and where
the crimes occurred--criteria that informs a court’s ordinary exercise of discretion to
choose between consecutive or concurrent sentences under rule 4.425(a)(3). As such,
Pacheco’s contention as to the payphone incident is properly characterized as an
argument that the trial court abused its discretion in selecting a consecutive sentence
based on that incident. He forfeited that argument by failing to object below.
We are unpersuaded by Pacheco’s contention that an objection would have been
futile given the court’s ruling on his section 654 motion. Defense counsel’s argument
with respect to section 654 focused on the throwing of the house phone. And, as
discussed above, we affirm the court’s ruling based on that incident. The trial court heard
no argument as to whether it could properly base its sentence for count 4 on the payphone
incident. Accordingly, we cannot agree with Pacheco that an objection specifically
drawing the court’s attention on the fact that count 4 was not premised on the payphone
incident would have been futile.
III. DISPOSITION
The judgment is affirmed.
15
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.