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Filed 7/ 6/16 P. v. Velasquez

- Mosqueda CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

---- THE PEOPLE,

Plaintiff and Respondent,

v. JUAN OMAR VELASQUEZ

- MOSQUEDA,

Defendant and Appellant. C075426
(Super. Ct. No. 12F04699)

A jury convicted d efendant Juan Omar Velasquez

- Mosqueda of kidnapping
and assault on a minor with force likely to produce great bodily injury. The trial court
sentenced him to an aggreg ate of six year s in prison.
D efendant now contends (1) the trial court abus ed its discretion in selecting
the midterm of five years on the kidnapping count , and (2) if defense counsel needed

to object in the trial court to preserve th e first contention fo r appeal, defendant received
ineffective assistance of counsel.
We conclude (1) defendant forfeited his first contention because his defense counsel did not object to the sentence in the trial court, and (2) defendant has not
established ineffective assistance of counsel

. We will affirm the judgment.2 B ACKGROUND
In July 2012, the victim , who was 14 years old at the time, went with t wo friends

to a birthday party at a house

. Pebbles Savala , who lived at the house, was dating Edgar
Mares , who had previously dated the victim. Pebbles informed Edgar by telephone t hat she was going to beat up the victim

. Edgar was incarcerated at the time. The phone
conversation between P ebbles and Edgar was reco rded and played for the jury.
About 35 minutes after arriv ing at the house , the victim received a text message from her mother telling her to come home. When the victim attempted to leave , Pebbles

co nfronted her and said , “W h y are you tal k ing about me?” P ebbles punched the victim
numerous times . P ebbles ’ s brother, D avid Savala , videotaped the incident and encouraged P ebbles to hit the victim

. The videotape was played for the jury. While
P ebbles was hitting the victim , other people at the party yelled , “G et her, get her. ” At one point, A .C ., M .A ., D avid and defendant joined in the attack

. Defendant punched the
victim in the face and kicked or hit the victim in her “ private area.” He also attempted to pull the victim’s pants down.
After the attack ended , D avid pu shed the victim out the front door an d told her to go home. As the victim walk ed home, the previous attackers pulled up in a van and began yelling at her , and the victim took off running. D efendant grabbed the victim by
the hair , pushed her into the back of the van and forced her into a fac e down position by grabbing her hair. Defendant h eld the victim down for abo ut five minutes, even though
the victim said she could not breathe. While traveling in the van, D avid told defendant to have sex with the victim in the
back seat. Defendant t ouc hed and rubbed the victim’s thigh. He also touched the victim’s vagina over he r clothes. When the victim pulled defendant’s hand away and told him to stop, defendant pu nched her in the face. Defendant then repeatedly attempted to put his hand down the victim’s bra. He finally stopped after about the f ifth time the
victim told him to stop

.3

P ebbles and others in the van thr eatened to prostitute the victim

. That night they
all s tayed in the same r oom. The next day , P e bbles , A .C

. and M .A

. told the victim to take a shower because they were going to prostitute her for m oney. While the victim was in the shower, A .C

. took a picture of her to p ost on a prostitution website.
When the victim got out of the shower, she wrappe d hers el f with a towel and went
into A.C

. ’s room. Defendant came into th e room and attempted to take the victim’s towel
off. The victim resisted and defendant punched her in the face. After defendant left the

room, P ebbles told the victim she was going to make them a lot of money working as a prostitute. Following a trip to Wal mart where the victim was told to shoplift certain items , P ebbles , defendan t , and another individual drove the victim to an area known for prostitution

. However, b e cause there was no one driving around , they decided to leave

. A round 2:00 a.m. , the victim was dropped off in front of an apartment complex where
she used to live. Pebbles told the victim not to “snitch” because she has gang members in
her family

. The v ictim walked home and told her mother what happened. The jury found defendant guilty of kidnapping ( Pen. Code, § 207, subd. (a)

-- count 2 ) 1 and assault on a minor with force likely to produce great bodily injury (§ 245, subd. (a)(4)

-- count 3 ) . The jury found defendant not guilty of aggravating kidnapping (§ 209, subd. (a)

-- count 1) and was unable to reach a verdict on the charge of sexual battery (§ 243.4, subd. (d)(1)

-- count 5), which was dismissed upo n a motion by the prosecutor. The p robation report recommended an aggre gate prison term of nine years, consisting of the upper term of eight years for the kidnapping and a consecutive one year (one

- third the midterm) for the assault. As to circumstances in aggravation , the report

1 Undesignated statutory references are to the Penal Code.4

identifie d three circumstances : (1) the crime involved great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness , or callousness (Cal. Rules of Court , rule 4.421(a)(1 ) ) ; 2 (2) the manner in which the crime was ca rri ed out indicated planning (rule 4.421(a)(8) ); and (3) defendant engaged in violent conduct indicating that he is a serious danger to society (rule 4.421 (b)(1))

. As to criteria affecting
consecutive or concurrent sentences , the report stated that a consecutive sentence was appropriate because the crimes committed by defendant involved separate acts of
violence or threats of violence . (R ule 4.425 (a)(2)

. ) A s circumstances in mitigation , the report noted tha t defendant was youthful (age 19 ) (rule 4. 408) and had no prior criminal record (rule 4.423(b)(1)). At sentencing, t he prosecutor argued for the sentence recommended by the probation officer , while defense counsel argued for probation or the low term on each

count

. The trial court sentenced defe ndant to an aggregate term of six years in p rison, consisting of the mid term of five years for the kidnapping and a consecutive one year (one

- third the mid term) for the assault

. T he trial court explained that it chose the
mid term for the kidnapping count because the factors in mitigation ( def endant’s age and lack of prior criminal record ) bala nced the factors in aggravation (the fact that the crime involved great violence and great bodily harm disclosing a high degree of cruelty, viciousness, and callousness , and defendant’s conduct indicates he is a serious danger to society )

. T he trial court noted defendant’s repeated failure to follow the rules in jail

--
t he probation report said defendant failed to rise for count on five separate occasions and left his cell without permission on two occasions when the jail was on lockdown

-- and
the trial court also noted that defendant had engaged in other instances of misconduct after the probation report was prepa red, such as being in the wrong cell, improperly

2 Undesignated rule references are to the California Rules of Court.5

pushing the panic button for an hour, and sneaking o ut of his cell to use the phone

. The trial court said defendant’s behavior showed an increasing defiance to correction al
officers and did not reflect true repentance, sorrow or a willingness to co nform to the rules of society.
DISCUSSION
I Defendant contends the trial court abused its discretion in selecting the midterm
of five years on the kidnapping count. The contention is forfeited.

“ A party in a cri minal case may not, on appeal, raise ‘c laims involving the trial
court’ s failure to properly make or articulate its d iscretionary sentencing choices’ if the party did not object to the sentence at trial. [Citation.] The rule applies to ‘cases in
which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double

- counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a suffi cient n umber of valid reasons.’ ” ( People v. Gonzalez (2003) 31 Cal. 4th 745, 751 ; see People v. McCullough (2013) 56 Cal. 4th 589, 594

- 595, 597, 599 .)
The record reflects that defendant ’s counsel had a fair opportunity to object

to the trial court’s sentencing d ecision but did not

. Nevertheless, d efendant argues his statement in mitigation and request for probation were tantamount to an object ion

to the sentence imposed

. We disagree

. Objections to a n imposed sentence m ust be sufficiently specific to provide th e trial court with a meaningful opportunity to correct
any errors. ( People v. D e Soto (1997) 54 Cal. App.4th 1, 9.) The failure to object with specificity results in forfeiture of th e claims on appeal. ( Id . at p. 10.) B ecause defendant failed to specifically object to the trial court’s sentencing decision , he has forfe ited his right to challenge that decision on appeal.6 II
D efendant next claims that if his trial attorney needed to object in the trial court

to preserve the first contention on appeal, defendant received inef fective assistance
of counsel. To establish a claim of ineffective assistance of counsel, defendant mu st prove that (1) trial counsel’ s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. ( People v. Mai (2013) 57 Cal. 4th 986, 1009 ; Strickland v. Washington (1984) 466 U.S. 668, 687

- 68 8 [80 L.Ed.2d 674 , 693 ].) “Prejudice is shown when there is 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. [Citation.]” ( People v.
Williams (1997) 16 Cal. 4th 153, 215.) If defendant makes an insufficient showing on either one of these components, his ineffective assistance claim fails. ( People v. Holt (1997) 15 Cal. 4th 619, 703; Strickland v. Washington , at p. 687.) “It is particularly difficult to prevail on an appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed for ine ffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas cor pus proceeding.” ( People v. Mai, supra, 57 Cal. 4th at p. 1009, italics omitted.) As a general matter, because the failure to object to evidence usually involves a tactical decision on counsel’s part, it rarely establishes a counsel’s incompetence. ( Peop le v. Frierson (1979) 25 Cal. 3d 142, 158; see also People v. Boyette (2002) 29 Cal. 4th 381, 433.)7

To properly analyze whether defendant’s trial counsel was ineffective in failing

to object , it will be helpful to review the applicabl e substantive law and t he trial court’s
exercise of discretion. Under California’s determinate sentencing law, three terms of imprisonment are specified by statute for most offenses. ( People v. Sandoval (2007) 41 Cal.4th 825, 836.) “Kidnapping is punishable by imprisonment in the state prison for three , five, or eight years.” (§ 208 , subd. (a).) The choice of the appropriate term rests within the sound discretion of the court. (§ 1170, subd. (b).) In exercising his or her discretion , “ the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be
obtained from the cas e record, the probation officer’ s report, other report s and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing. ” (Rule 4.420(b).) When making sentencing decisions, trial courts have wide discretion in weighing aggravating and mitigati ng factors. ( People v. Avalos (1996) 47 Cal. App .4th 1569,
1582 .) A single valid aggravating factor justifies the upper term. ( People v. Black (2 007)
41 Cal.4th 799, 815 .) In making discretionary sentencing decisions, the trial court “is not prohibited from considering evidence underlying charges of which a defendant has been acquitted.” ( People v. Towne (2008) 44 Cal.4th 63, 71.) Abuse of discretion only occurs when the trial court’s determination is “arbitrary or capricious” or exceeds the bounds of reason. ( People v. Welch (1993) 5 Cal.4th 228, 234.) Here, t he trial court chose the midterm sentence on the kidnapping count because it determined that the factors in mitigation balanced the factors in aggravation. T he trial
court did not abuse its d is cretion in weighing the aggravating and mitigating factors and determining that a midterm sentence was appropriate. The sentencing choice was not arbitrary or capricious and d id not exceed the bounds of reason.8

Moreover, the trial court did not err in re lying on the aggravating factors it cited at sentencing. There was evidence showing that defendant punched the victim in the face, kicked or hit her in her “private area,” and attempted to pull her pants off at the party. There was also evidence showing that, after the victim left the party, defendant punched the victim in the face on two separate occasions, dragged her into a van by her hair, forced her face into a downward position by grabbing her hair, touched and rubbed her thigh, touched her vagina o n the outside of her pants, repeatedly attempted to touch her breasts, and attempted to pull a towel off of her. In addition, there was evidence showing that defendant was present on both occasions when the victim was driven to an area known for prostitut ion and told she was going to have to work as a prostitute against her will. The record amply supports the trial court’s determination that defendant’s acts involved great violence and great bodily harm disclosing a high degree of cruelty, viciousness, an d callousness , and that defendant is a serious danger to society. Defendant’s crimes, which were perpetrated over an extended period of time and in the view of others, not only caused physical harm to the victim but also exposed her to fear, shame, and hu miliation. Furthermore, it was not improper for the trial court to use the fact that defendant punched the victim at the party as an aggravating factor. The prohibition against dual use in rule 4.420(d) applies to using an element of a crime to impose th e upper term; it does not apply when, as here, the middle term is imposed. (See People v. Haynes (1984)
160 Cal.App.3d 1122, 1137

- 1138.) In addition, the trial court did not err in c onsider ing defendant’s behavior in jail. As defendant concedes, the tri al court did not find that the jail conduct was an aggravating factor. Instead, the trial court noted defendant’s behavior in jail as further support for its determination that defendant was a serious danger to society. In any event,
because such conduct was reasonably related to the trial court’s sentencing decision, the trial court had the discretion to consider it. (Rule 4.420(b).)9

Thus, o n the record before us, we cannot say t rial counsel’ s representation was
deficient

. In view of the egregious nat ure of defendant’s conduct and the trial court’s explanation for its chosen sentence, it cannot be said that there was no rational purpose for trial counsel’s failure to object to the sentence imposed. The trial court relied on valid aggravating and mitig ating circumstances set forth in the rules of court in making its sentencing decision

. Further, the trial court did not err in considering defendant’s behavior in jail because it was reasonably related to its sentencing decision

. Under the circumstances, trial counsel could have reasonably conc luded that an objection would not
have resulted in a reduction of defendant’s sentence. Indeed, given the circumstances in aggravation, the trial court would have acted well within its discretion if it had imposed the upper term as requested by the probation officer and the prosecutor. Thus, we cannot fault counsel for not making what would have been a futile objection. Moreover,
defendant failed to establish prejudice. I t is not reasonably probable that , absent the alleged errors by trial counsel, the trial court would have ch osen a lesser sentence

. Accordingly, defendant’s claim of ine ffective assistance of counsel fails.
DISPOSITION The judgment is affirmed.

/S/ MAURO, J.

We concur:

/S/ NICHOLSON, Acting P. J.

/S/ RENNER, J.