Filed 11/19/15 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

OMAR VALENCIA GARCIA, JR.,

Defendant and Appellant.

F069203

(Super. Ct. No. VCF265323)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. 

Paden, Judge.

Gideon Margolis, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Kane, J. and Detjen, J.
2.

INTRODUCTION

On February 24, 2014, a jury convicted defendant of unlawful possession of a 

firearm by a felon, unlawful possession of ammunition by a felon, and attempting to 

dissuade a witness from testifying. In a separate proceeding, the trial court found 

allegations that defendant had two prior strikes, a prior serious felony, and two prior 

prison terms to be true. The trial court sentenced defendant to a doubled upper-term 

sentence of six years for the unlawful possession of a firearm conviction, a concurrent 

doubled middle-term sentence of four years for the unlawful possession of ammunition 

conviction, and a consecutive indeterminate term of 30 years to life in prison for the 

conviction for attempting to dissuade a witness from testifying. 

On appeal, defendant argues (1) the trial court abused its discretion by sentencing 

him to the upper term for his unlawful possession of a firearm conviction, and (2) his trial 

counsel was ineffective for failing to object to the imposition of the upper term sentence.1 

We affirm. 

FACTS

On March 9, 2012, defendant shot Lawrence Bierman in the arm and upper chest 

with a shotgun. Following defendant’s apprehension, an information was filed charging 

defendant with attempted murder, unlawful possession of a firearm by a felon, and 

unlawful possession of ammunition by a felon.2 The information was later amended to 

include a charge of attempting to dissuade a witness from testifying after the discovery of 

a recorded jailhouse phone call in which defendant told Bierman not to appear at 

defendant’s preliminary examination. 

 

1 Defendant’s brief on appeal also asserted that his presentence custody credits had 

been miscalculated. Defendant has since withdrawn that argument. 

2 The information also charged defendant with one count of false imprisonment by 

violence, which was later dismissed by the trial court.
3.

At trial, Bierman’s cousin, who witnessed the shooting, testified that defendant 

and Bierman had argued over marijuana, and that defendant had retrieved a shotgun and 

shot Bierman with it.3 Defendant took the stand in his own defense and testified that 

Bierman attempted to steal some of the 40 to 45 pounds of marijuana defendant was in 

possession of, and that defendant shot Bierman in self-defense after Bierman attacked 

him with a knife and screwdriver. Defendant also testified that he told Bierman not to 

appear at the preliminary examination for “totally altruistic” reasons. 

At the conclusion of trial, the jury found defendant guilty of the unlawful 

possession of a firearm and ammunition charges, as well as the charge of attempting to 

dissuade a witness from testifying, but acquitted defendant on the charge of attempted 

murder. At sentencing, defendant filed a Romero4 motion to dismiss his prior strikes, 

which the court denied with the following statement:

“... As to the Romero motion, that is denied. The defendant in my mind is 

certainly a career criminal. He had a shotgun. By his own admission, he was 

possessing 40 pounds of marijuana which he was going to sell, so you talk about 

him [being] gainfully employed, [but] his only employment I see here is continued 

criminal activity.

“He served two prior prison terms. The strikes are crimes of violence 

and/or gun charges which is exactly what we have here, four felony convictions, 

[and he] violated his parole twice. I don’t see where there’s – the court has much 

discretion here, other than to send him to prison for the Three Strikes Law given 

what I’ve seen.” 

Following this denial, the court went on to sentence defendant to a doubled upperterm sentence of six years for the unlawful possession of a firearm conviction, a doubled 

middle-term sentence of four years for the unlawful possession of ammunition 

 

3 Bierman was called as a witness, but testified that he did not remember where he 

lived in 2012, did not remember being shot, and did not remember giving a statement to 

the police. The trial court subsequently found Bierman unavailable as a witness due to 

his “obvious” evasion of questions and refusal to testify. 

4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
4.

conviction, and an indeterminate term of 30 years to life in prison for the conviction for 

attempting to dissuade a witness from testifying. This appeal followed.

DISCUSSION

I. The trial court did not abuse its discretion by imposing the upper term for 

defendant’s unlawful possession of a firearm conviction.

Defendant argues the trial court abused its discretion by sentencing him to the 

upper term for his unlawful possession of a firearm conviction. We disagree.5

Under the California Rules of Court, when a prison sentence is imposed, “the 

sentencing judge must select the upper, middle, or lower term on each count for which 

the defendant has been convicted[.]” (Cal. Rules of Court, rule 4.420(a).) In exercising 

its discretion in selecting one of these terms, “the sentencing judge may consider 

circumstances in aggravation or mitigation, and any other factor reasonably related to the 

sentencing decision.” (Cal. Rules of Court, rule 4.420(b).) When challenging such a 

discretionary sentencing choice, the burden is on the defendant to show that the 

sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 

367, 376.)

Here, the trial court imposed the upper term after citing defendant’s history of 

violent crime, previous parole violations, prior prison terms, and defendant’s admission 

that he was in possession of over 40 pounds of marijuana at the time the shooting in this 

case took place. Prior violent crimes, prior poor performance on parole, prior prison 

terms, and offenses involving large amounts of contraband are all enumerated 

aggravating factors justifying an upper term sentence under the California Rules of Court. 

 

5 Defendant did not object to the imposition of the upper term at sentencing. 

However, as we must consider the merits of this argument for the purposes of evaluating 

defendant’s ineffective assistance of counsel claim, we decline to consider whether or not

this argument is properly before this court.
5.

(Cal. Rules of Court, rule 4.421(a)(10), (b)(1)-(3), and (b)(5).)6 Given this extensive list 

of aggravating factors, we cannot conclude the trial court’s decision to impose the upper 

term was irrational or arbitrary.

Defendant also challenges the imposition of the upper term on the grounds the trial 

court did not orally state its reasons for imposing that term on the record. When 

imposing an upper or lower term, the trial court must state the reasons for doing so on the 

record. (Cal. Rules of Court, rule 4.420(e).) Here, however, the trial court orally 

weighed the factors in aggravation and mitigation before denying defendant’s Romero 

motion and just moments before imposing the upper term for defendant’s firearm

conviction. Taken in context, the trial court’s oral statements regarding the Romero 

motion clearly applied to the trial court’s sentencing decision, and any reiteration of the 

aggravating factors would have been redundant. 

Nevertheless, even if the trial court erred by failing to engage in such redundancy, 

any error was harmless. When a court fails to state its reasons for imposing a sentencing 

choice, reversal is only required if there is a reasonable probability that the defendant 

would have received a more favorable sentence in the absence of the court’s error. 

(People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300-1301.) Given the nature of the 

trial court’s statements regarding defendant’s Romero motion, we find no such 

probability in this case. 

II. Defendant was not denied the effective assistance of counsel.

Defendant also contends his trial counsel was ineffective for failing to object to 

the imposition of the upper term for his firearm conviction. Again, we disagree.

 

6 Defendant devotes much of his brief on appeal to the argument that his crime was 

not more “violent” or “aggressive” than other cases involving unlawful possession of a 

firearm. Setting aside the fact defendant shot Bierman in the arm and chest while 

unlawfully possessing a firearm in this case, there is no statutory or case law supporting 

the proposition that upper terms are reserved only for cases which are particularly violent 

or aggressive.
6.

In order to prevail on a claim of ineffective assistance of counsel a defendant must 

establish (1) that counsel’s representation fell below an objective standard of 

reasonableness, and (2) that there is a reasonable probability that a determination more 

favorable to defendant would have resulted in the absence of counsel’s unprofessional 

errors. (People v. Kipp (1998) 18 Cal.4th 349, 366.)

Here, as noted above, the imposition of the upper term was amply supported by 

the aggravating factors cited by the trial court at sentencing. Accordingly, we cannot 

conclude that there is a reasonable probability that a more favorable sentence would have 

been imposed had defense counsel lodged an objection to the imposition of the upper 

term. With no evidence of prejudice, we must reject defendant’s argument. 

DISPOSITION

The judgment is affirmed.