California Court of Appeal Apr 2, 2025 No. E082113Unpublished
Filed 4/2/25 P. v. Valdez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082113
v. (Super.Ct.No. INF2000827)
JOSE TORRES VALDEZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Paige B.
Hazard and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Jose Angel Torres Valdez, Jr., kidnapped three women, drove them to
the desert where he ordered them to get down on their knees, threatened to kill them
while touching a firearm tucked into his waistband, and later threatened them with future
harm if they reported the crimes to the police. A jury convicted him of multiple counts of
making criminal threats, kidnapping, and dissuading a witness, and it found true
sentencing allegations that he personally used a firearm during the commission of each
offense.
On appeal, defendant argues: (1) there was insufficient evidence he used an actual
firearm to support the jury’s true findings on the firearm use sentence enhancements;
(2) the trial court abused its discretion when it denied his request to instruct the jury it
could consider his voluntary intoxication when it decided whether he formed the specific
intents for making criminal threats and for dissuading a witness; (3) the trial court abused
its discretion when it denied his request to strike his firearm use enhancements, pursuant
to Penal Code section 13851; (4) the trial court was required to stay the sentences for his
convictions for dissuading a witness and for the firearm sentence enhancements attached
to those counts, pursuant to section 654; and (5) the trial court ignored and failed to give
serious consideration to mitigating factors when it sentenced him to consecutive state
prison terms instead of concurrent ones.
We find no error, and affirm the judgment.
1 All undesignated statutory references are to the Penal Code.
2
I.
FACTS AND PROCEDURAL BACKGROUND
Starr was acquainted with defendant from an old job and the two hung out at least
once. On September 26, 2019, at approximately 3:00 a.m., Starr and her friends Emma
and Chayah were hanging out with defendant and his friend or cousin, Mario, at an
apartment in Bermuda Dunes. At some point, Starr saw a gun in defendant’s truck.
Defendant told her he was “not gonna do anything with it.” Later, defendant told Chayah
that Starr was upset because he had a gun in the truck. He also told Chayah he was not
going to use the gun. The young women shared a six-pack of Smirnoff drinks at the
apartment, and, eventually, the group all left in defendant’s truck to go and buy more
alcohol. Defendant drove.
Chayah and Mario were joking around with each other during the drive, and
defendant got upset and told Chayah to stop talking to his cousin like that. Defendant
and Chayah began to argue and were “kind of going at it.” He told the women they
“need[ed] some discipline” and began driving toward the desert instead of the store as
originally planned. The women asked defendant to slow down to no avail. They also
asked to be let out of the truck, but defendant would not stop.
Emma was scared because she did not know what was going to happen and they
were “in the desert in the middle of nowhere.” Defendant pulled over to the side of the
road and told the women to get out of the truck and to get down on their knees. The
women walked behind the truck and complied because they were scared and believed
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they had no other choice. Chayah saw defendant get a gun from the truck. Chayah
testified she was “sort of” familiar with firearms, and she was 99.9 percent sure the object
defendant retrieved was a gun because of the way he was “gripping it,” the way he placed
it in his waistband, from its shape, and from the fact it had a “circle” in the front that was
surrounded by silver. Emma testified that, based on her past experiences and from
defendant’s movements and gestures, she believed there was a silver handgun “poking
out of” his waistband. Although Starr had never seen a handgun in person, she had seen
them in photographs and in the movies and she believed defendant had a gun tucked into
his pants because the object “looked metal.”
Defendant told the women to give him their phones “or else he was going to hurt”
them. He took Chayah’s and Starr’s phones. Emma put her phone “down her pants” and
defendant did not take it. She then used her phone to share her location with a friend, and
she tried to call 911 but the call did not go through. While the women were on their
knees, defendant said he was going to kill them. Defendant was touching the gun in his
waistband when he said he was going to kill them. He also said he had killed other
women. All three women thought they were going to die, and they begged defendant not
to kill them. Defendant eventually told the women to get up, and they got up and sat
down in the bed of the truck.
Defendant later said they were going to leave, and everyone got inside the truck.
But the truck got stuck in the dirt, and defendant got angry and once more told the
women to get out of the truck and to get down on their knees. A tow truck happened to
4
be approaching them on the road and they all flagged it down. As the truck pulled over
and the women began to run toward it, defendant ran after them and said, “You guys
better not say nothing dumb.” The women wanted to tell the tow truck driver they
needed help, but they were afraid because defendant was there with them. The tow truck
driver got defendant’s truck out of the dirt, and defendant drove back toward Indio and
left the women near Emma’s house. Defendant told the women they “better not call the
cops on him.” Chayah took a picture of the truck’s license plate as defendant drove away
and the women called the police. Police later searched defendant’s home and truck but
could not find a gun.
A jury found defendant guilty of three counts of making criminal threats (§ 422,
counts 1-3), three counts of preventing or dissuading a witness from reporting a crime
(§ 136.1, subd. (b)(1), counts 4-6), and three counts of kidnapping (§ 207, subd. (a),
counts 7-9). The jury also found that during the commission of counts 1 through 6,
defendant personally used a firearm within the meaning of section 12022.5, subdivision
(a), and that during the commission of counts 7 through 9, defendant personally used a
firearm within the meaning of section 12022.53, subdivision (b).
In a bifurcated proceeding, the trial court found true the allegation defendant had
suffered a prior strike conviction, but the court granted defendant’s request to dismiss it.
The court also found beyond a reasonable doubt that several aggravating factors applied.
The trial court sentenced defendant to state prison for the middle term of five years on
count 7, and a consecutive 10-year term for the firearm enhancement attached to that
5
count (§ 12022.53, subd. (b)); a consecutive five-year middle term on count 8 plus a
consecutive 10-year term for the firearm enhancement attached to that count (§ 12022.53,
subd. (b)); a consecutive five-year middle term for count 9, plus a consecutive 10-year
term for the firearm enhancement attached that count (§ 12022.53, subd. (b)); and
consecutive three-year terms for the convictions on counts 4, 5, and 6, for an aggregate
term of 54 years in state prison. The court imposed but stayed, pursuant to section 654,
the punishment on counts 1, 2, and 3, and ordered that the punishment for the
enhancements attached to those counts be stricken. The court dismissed the three-year
terms for the section 12022.5, subdivision (a), firearm enhancements attached to counts 4,
5, and 6.
In addition, the trial court imposed a consecutive 16-month term on a separate case
(case No. INF2000808), resulting in a total state prison sentence of 55 years four months.
Defendant timely appealed.
II.
DISCUSSION
A. Substantial Evidence Supports The Jury’s True Findings That Defendant
Personally Used A Firearm.
Defendant argues the record does not contain substantial evidence to support the
jury’s findings that he personally used a firearm during the commission of his offenses.
We conclude otherwise.
6
“‘In considering a challenge to the sufficiency of the evidence to support an
enhancement, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably deduced from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] “A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.”’” (People v. Renteria (2022)
13 Cal.5th 951, 970.)
“‘Even where, as here, the evidence of guilt is largely circumstantial, our task is
not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the
evidence might “‘“be reasonably reconciled with the defendant’s innocence.”’”’”
(People v. Veamatahau (2020) 9 Cal.5th 16, 36.) Unless it is physically impossible or
inherently improbable, the testimony of a single witness is sufficient proof of any fact.
(Evid. Code, § 411; People v. Avila (2009) 46 Cal.4th 680, 703; People v. Young (2005)
34 Cal.4th 1149, 1181.) “‘A reversal for insufficient evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’” the jury’s verdict.’” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
7
The sentence enhancements found in section 12022.5, subdivision (a), and section
12022.53, subdivision (b), apply to persons who personally use a “firearm” during the
commission of certain felonies. Section 12022.53, subdivision (b), provides, “The
firearm need not be operable or loaded for this enhancement to apply.” As the trial court
properly instructed the jury (see CALCRIM No. 3146), a “‘firearm’ means a device,
designed to be used as a weapon, from which is expelled through a barrel, a projectile by
the force of an explosion or other form of combustion.”2 (§ 16520, subd. (a); see § 12001
[applying definition of “firearm” to sentence enhancements].) “‘[T]oy guns obviously do
not qualify as a “firearm,” nor do pellet guns or BB guns because, instead of explosion or
other combustion, they use the force of air pressure, gas pressure, or spring action to
expel a projectile.’” (People v. Law (2011) 195 Cal.App.4th 976, 983 (Law), quoting
People v. Monjaras (2008) 164 Cal.App.4th 1432,1435 (Monjaras); accord, People v.
Dixon (2007) 153 Cal.App.4th 985, 1001 [“A BB gun or pellet gun is not a ‘firearm’ for
purposes of sentence enhancements”], citing People v. Vasquez (1992) 7 Cal.App.4th
763, 768.)
“‘[W]hen as here a defendant commits [an offense] by displaying an object that
looks like a gun, the object’s appearance and the defendant’s conduct and words in using
it may constitute sufficient circumstantial evidence to support a finding that it was a
2 An “‘imitation firearm’” is defined as “any BB device, toy gun, replica of a firearm, or other device that is so substantially similar in coloration and overall appearance to an existing firearm as to lead a reasonable person to perceive that the device is a firearm.” (§ 16700, subd. (a)(1).)
8
firearm within the meaning of section 12022.53, subdivision (b).’ (Monjaras, supra, 164
Cal.App.4th at p. 1437.) Circumstantial evidence that establishes a defendant’s personal
use of a gun within the meaning of section 12022.53, subdivision (b), also suffices for
personal use of a firearm for purposes of assault with a firearm [citation] and the personal
use enhancement of section 12022.5, subdivision (a).” (Law, supra, 195 Cal.App.4th at
p. 983.)
“Most often, circumstantial evidence alone is used to prove the object was a
firearm. This is so because when faced with what appears to be a gun, displayed with an
explicit or implicit threat to use it, few victims have the composure and opportunity to
closely examine the object; and in any event, victims often lack expertise to tell whether
it is a real firearm or an imitation. And since the use of what appears to be a gun is such
an effective way to persuade a person to part with personal property without the robber
being caught in the act or soon thereafter, the object itself is usually not recovered by
investigating officers.” (Monjaras, supra, 164 Cal.App.4th at p. 1436.)
Defendant argues the evidence did not support the jury’s true findings that he
personally used an actual firearm, because neither Starr nor Emma testified they actually
saw the gun, and Chayah’s description of what she saw was equally consistent with a BB
gun. But, as indicated, ante, all three women testified defendant held or gripped an
object in his waistband in a manner consistent with holding a firearm; Chayah testified
that, based on her familiarity with firearms, she was almost 100 percent certain it was a
gun from the way defendant held it and from its shape and other characteristics; and
9
defendant admitted to Chayah that he had a gun in his truck when he told her Starr was
upset because she had seen the gun. And all three women were in fear for their lives
when defendant—as he touched the object in his waistband—said he would kill them and
that he had killed before.
“The jury was not required to give defendant the benefit of the victim’s inability to
say conclusively the [object] was a real firearm. This is so because ‘defendant’s own
words and conduct in the course of an offense may support a rational fact finder’s
determination that he used a [firearm].’” (Monjaras, supra, 164 Cal.App.4th at pp. 1436-
1437.) “As the old saying goes, ‘if it looks like a duck, and quacks like a duck, it’s a
duck.’” (Id. at p. 1437.) The object defendant took from his truck and tucked into his
waistband “looked like a firearm, and it in effect communicated that it was a firearm”
when he idly touched it and told the women—as they were on their knees—that he was
going to kill them. (Ibid.) “While it is conceivable that the [object] was a toy, the jury
was entitled to take defendant at his word, so to speak, and infer from his conduct that the
[object] was a real, loaded firearm,” and that he was prepared to follow through with his
threats. (Ibid.)
B. Defendant Was Not Entitled to an Instruction on Voluntary Intoxication.
Defendant argues the trial court abused its discretion when it denied his request
that the jury be instructed on voluntary intoxication for counts 1 through 6. The trial
court denied the request because there was no testimony about how many alcoholic
10
drinks defendant had consumed, how much cocaine he had ingested, or about the
“degree” to which he had become intoxicated. We find no error.
“It is well settled that ‘[a]n instruction on the significance of voluntary
intoxication is a “pinpoint” instruction that the trial court is not required to give unless
requested by the defendant.’” (People v. Verdugo (2010) 50 Cal.4th 263, 295.) “In
determining whether the evidence is sufficient to warrant a jury instruction, the trial court
does not determine the credibility of the defense evidence, but only whether ‘there was
evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’”
(People v. Salas (2006) 37 Cal.4th 967, 982.) “We review a trial court’s refusal to give a
requested instruction de novo.” (People v. Quarles (2018) 25 Cal.App.5th 631, 634,
citing People v. Waidla (2000) 22 Cal.4th 690, 733.)
Evidence of voluntary intoxication is not admissible to show or negate capacity to
form a particular intent. (§§ 25, subd. (a), 29.4, subd. (a).) “Evidence of voluntary
intoxication is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent.” (§ 29.4, subd. (b); see People v. Horton (1995) 11
Cal.4th 1068, 1119 [“[E]vidence of voluntary intoxication is relevant to the extent it
bears upon the question whether the defendant actually had the requisite specific mental
state required for commission of the crimes at issue.”].) There is no dispute here that
defendant’s offenses of making a terrorist threat (§ 422) and of dissuading a witness
(§ 136.1, subd. (b)(1)) are specific intent crimes, and that, theoretically, a jury could be
instructed it could find voluntary intoxication prevented defendant from forming a
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specific intent. (See, e.g., People v. Felix (2001) 92 Cal.App.4th 905, 911 [“Section 422
. . . requires that the threatening statement be made with the specific intent to be taken as
a threat.”]; People v. Navarro (2013) 212 Cal.App.4th 1336, 1347 [“‘[S]ection 136.1 is a
specific intent crime.’”].) The question here is whether there was substantial evidence to
support giving such an instruction.
“The mere fact that a defendant may have been drinking [or using drugs] prior to
the commission of a crime does not establish intoxication or require the giving of a
requested instruction thereon.” (People v. Miller (1962) 57 Cal.2d 821, 830-831.) A
defendant is entitled to an instruction on involuntary intoxication “only when there is
substantial evidence of the defendant’s voluntary intoxication and the intoxication
affected the defendant’s ‘actual formation of specific intent.’” (People v. Williams
(1997) 16 Cal.4th 635, 677.) In other words, “an intoxication instruction is not required
when the evidence shows that a defendant ingested drugs or was drinking, unless the
evidence also shows he became intoxicated to the point he failed to form the requisite
intent or attain the requisite mental state.” (People v. Ivans (1992) 2 Cal.App.4th 1654,
1661.)
At most, the evidence adduced at trial was that defendant and Mario had been
“doing cocaine” and they and the three women were drinking alcohol. The group then
decided to go out and buy some more alcohol. No witness testified to how many
alcoholic drinks defendant had consumed or for how long he had been drinking.
12
Likewise, no witness testified to how much cocaine defendant ingested. Most
importantly, no witness testified that defendant looked or acted like he was intoxicated.
As indicated, ante, the testimony was that defendant drove the group in his truck
to get more alcohol, but that he became upset when Mario and Chayah started joking
around. He then told the women they needed to be taught some discipline and drove out
toward the desert. Although defendant was driving fast, no evidence was introduced to
show his driving was erratic or unsafe. Defendant then stopped and ordered the women
to get out of the truck and down on their knees, threatened to kill them, and, when a tow
truck happened to come by, he told the women not to say anything. And, when he later
dropped off the women, he told them not to call the police. These acts, by themselves, do
not necessarily demonstrate intoxication sufficient to prevent him from forming a specific
intent. (See People v. Spencer (1963) 60 Cal.2d 64, 89 [“These are not the actions of a
man too drunk to form a specific intent to rob.”].)
Moreover, even if the mere act of ingesting cocaine and consuming alcohol were
sufficient to show defendant was to some degree intoxicated, it was not sufficient to
warrant an inference that he was too intoxicated to form a specific intent. In Williams,
the California Supreme Court held that even if a few isolated references in the record to a
defendant being “‘spaced out,’” “‘doped up,’” and “‘smokin’ pretty tough,’” qualified as
evidence the defendant was intoxicated at the time of the crime, the trial court properly
denied a request for a voluntary intoxication instruction because “there was no evidence
at all that voluntary intoxication had any effect on [the] defendant’s ability to formulate
13
intent.” (People v. Williams, supra, 16 Cal.4th at pp. 677-678, italics added; accord,
People v. Serrano (2022) 77 Cal.App.5th 902, 918 [“Here, the evidence of defendant’s
voluntary intoxication was scant, but assuming it amounted to substantial evidence, there
was still no evidence defendant was unable to form the specific intent required for a
finding of malice.”] fn. omitted.)
C. The Trial Court Properly Declined To Strike The Punishment For
Defendant’s Firearm Enhancements Pursuant to Section 1385.
Defendant argues the trial court failed to consider certain mitigating circumstances
when it denied his request to dismiss his firearm enhancements. He contends that, if we
affirm the true findings on those enhancements (as we do, post), we must remand for the
trial court to dismiss them. The trial court found defendant’s prior criminal history meant
dismissing the enhancements would endanger public safety. We find no abuse of
discretion.
We review for abuse of discretion the denial of a motion to dismiss a firearm
sentence enhancement under section 1385. (Nazir v. Superior Court (2022) 79
Cal.App.5th 478, 490; People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322.) “In
reviewing for abuse of discretion, we are guided by two fundamental precepts. First,
‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
14
review.”’ [Citation.] Second, a ‘“decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citation.]
Taken together, these precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
The trial court here had express authority under section 1385 to strike or dismiss
defendant’s firearm enhancements. (§§ 12022.5, subd. (c), 12022.53, subd. (h).) When a
court has the discretion to dismiss or strike an enhancement, it may elect instead to strike
the additional punishment for the enhancement in the furtherance of justice. (§ 1385,
subd. (b).) Section 1385, subdivision (c)(1), provides: “Notwithstanding any other law,
the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except
if dismissal of that enhancement is prohibited by any initiative statute.” Subdivision
(c)(2) provides, in turn, that when exercising its discretion to strike a sentence
enhancement, the trial court must consider and give great weight to evidence of the
presence of nine mitigating circumstances. (§ 1385, subd. (c)(2)(A)-(I).) “Proof of the
presence of one or more of these circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement would endanger
public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of
the enhancement would result in physical injury or other serious danger to others.”
(§ 1385, subd. (c)(2), italics added.)
15
Recently, the California Supreme Court held section 1385, subdivision (c)(2), does
not establish a presumption that “an enhancement should be dismissed whenever an
enumerated mitigating circumstance is present, but instead ‘the ultimate question before
the trial court remains whether it is in the furtherance of justice to dismiss an
enhancement’ [citation] and this ‘furtherance of justice’ (§ 1385, subd. (c)(1)) inquiry
requires a trial court’s ongoing exercise of ‘discretion’ (id., subd. (c)(2)). Thus,
notwithstanding the presence of a mitigating circumstance, trial courts retain their
discretion to impose an enhancement based on circumstances ‘long deemed essential to
the “furtherance of justice” inquiry.’” (People v. Walker (2024) 16 Cal.5th 1024, 1033.)
Relevant here, the court observed, “in most cases, ‘if the trial court finds that dismissal of
an enhancement would endanger public safety, then it is hard to see how dismissal would
further the interests of justice,’ notwithstanding the applicability of any mitigating factors
identified in subdivision (c)(2).” (Walker, at p. 1033, quoting People v. Mendoza (2023)
88 Cal.App.5th 287, 297, fn. 6.)
To repeat, the trial court expressly ruled dismissal of defendant’s firearm
enhancements would, in fact, endanger public safety. Defendant does not contend the
record does not support the trial court’s finding or otherwise convince us that the trial
court abused its discretion.
16
D. Section 654 Did Not Require The Trial Court to Stay The Sentences For
Defendant’s Convictions For Dissuading A Witness And The Sentence Enhancements
Attached To Those Offenses.
Defendant contends the trial court erred by not staying, pursuant to section 654,
the sentences on his convictions for dissuading a witness on counts 4 through 6 and
staying the punishment for the firearm attachments attached to those counts.3 He argues
the kidnappings and witness dissuading were part of one continuous course of conduct.
We disagree.
Section 654, subdivision (a), provides: “An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision.” “It is well settled that section 654 protects against multiple punishment, not
multiple conviction. [Citation.] The statute itself literally applies only where such
punishment arises out of multiple statutory violations produced by the ‘same act or
omission.’ [Citation.] However, because the statute is intended to ensure that defendant
is punished ‘commensurate with his culpability’ [citation], its protection has been
extended to cases in which there are several offenses committed during ‘a course of
3 In his briefs, defendant somewhat vaguely refers to “the firearm enhancements,” without specifying which ones his argument applies to. The People assume defendant’s argument applies to the enhancements attached to counts 7 through 9. However, it is clear defendant argues section 654 applies to the enhancements pursuant to section 12022.5, subdivision (a), for counts 4 through 6. Therefore, we need not address the People’s contention that section 654 does not apply as a matter of law to the enhancements under section 12022.53.
17
conduct deemed to be indivisible in time.’” (People v. Harrison (1989) 48 Cal.3d 321,
335.)
“‘“‘Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’”’” (People v. Jackson
(2016) 1 Cal.5th 269, 354.) “It is defendant’s intent and objective, not the temporal
proximity of his offenses, which determine whether the transaction is indivisible.”
(People v. Harrison, supra, 48 Cal.3d at p. 335.) “‘The defendant’s intent and objective
are factual questions for the trial court; [to permit multiple punishments,] there must be
evidence to support a finding the defendant formed a separate intent and objective for
each offense for which he was sentenced. [Citation.]’” (People v. Coleman (1989) 48
Cal.3d 112, 162.)
“A trial court’s express or implied determination that two crimes were separate,
involving separate objectives, must be upheld on appeal if supported by substantial
evidence.” (People v. Brents (2012) 53 Cal.4th 599, 618.)
When sentencing defendant, the trial court agreed with the People that defendant’s
criminal threats were made during the kidnapping and, therefore, section 654 applied to
the sentences on counts 1 through 3 and to the sentence enhancements for those counts.
However, although the acts of dissuading the women from reporting the crimes “occurred
during the same general timeframe” as the kidnappings and threats, the court ruled the
18
intent behind dissuading the women was “very different from the intent behind
kidnapping and making the threats.” Whereas the object of the kidnappings and threats
was to instill fear and gain some psychological satisfaction, the court ruled the object of
dissuading the women “was to avoid detection and conviction for his crimes by
threatening the victims with future harm.”
Here, circumstantial evidence supports the trial court’s findings. Defendant
became angry with Chayah for joking around with Mario, argued with her, then said the
women needed to learn some discipline. He proceeded to drive out to the desert, instead
of going to buy more alcohol as planned, then ordered the women to get out of the truck
and get down on their knees. Defendant then threatened to kill them while touching the
firearm he had taken from the truck and tucked into his waistband. At that point, the
kidnapping and criminal threats were completed crimes. Defendant did not seek to
dissuade the women from reporting those crimes until sometime later, when the tow truck
appeared and when defendant dropped them off. More to the point, the object or purpose
behind the earlier crimes, to the extent they are ascertainable (to “discipline” the women,
scare them, etc.), were dissimilar to the obvious object of the act of dissuading the
women—to prevent them from reporting the kidnappings/threats, and to avoid being
arrested and potentially convicted for those crimes.
People v. Louie (2012) 203 Cal.App.4th 388, on which defendant relies, is easily
distinguishable. There, the defendant came to the back gate of the victim of an arson that
occurred two weeks prior, “pointed a gun at her, called her a ‘cop-calling bitch,’ and said
19
she was going to get hers, just like the night of the fire.” (Id. at p. 394.) For that discrete
incident, the defendant was convicted of threatening the victim and of dissuading her
from reporting the crime. (Id. at p. 399.) The appellate court ruled section 654
prohibited punishing the defendant for both offenses. “This was a single criminal act and
. . . a single criminal act may result in only one punishment, even if the defendant
harbored multiple objectives. The threat was merely the method employed to attain the
objective of dissuading the witness.” (Louie, at p. 399.)
Unlike in Louie, the kidnappings and threats were not how defendant sought to
dissuade the women from reporting the crimes, or vice versa. To repeat, those crimes
were, effectively, completed and defendant threatened the women with future harm to
ensure their silence. We find no error.
E. The Trial Court Properly Exercised Its Sentencing Discretion When It
Imposed Consecutive Terms.
Last, defendant argues the trial court ignored mitigating factors that “required
concurrent rather than consecutive sentences,” and which resulted in a “grossly
disproportionate sentence.” According to defendant, he was entitled to “serious
consideration” by the sentencing court of those mitigating factors, and his sentence
deviated “from the ‘norm’ of imposition of concurrent sentences.” Once more, we are
unpersuaded.
Contrary to defendant’s assertion, concurrent sentencing is not necessarily the
“norm” or the presumed sentencing choice. “‘Section 669 grants the trial court broad
20
discretion to impose consecutive sentences when a person is convicted of two or more
crimes.’” (People v. Leon (2010) 181 Cal.App.4th 452, 467.) Section 669 “does not
establish a presumption in favor of concurrent sentences; its requirement that concurrent
sentences be imposed if the court does not specify how the terms must run merely
provides for a default in the event the court fails to exercise its discretion.” (People v.
Black (2007) 41 Cal.4th 799, 822, superseded by statute on other grounds as stated in
People v. Lynch (2024) 16 Cal.5th 730, 756-758.)
Nor do we agree with defendant that the record shows the trial court ignored
sentencing factors that might have supported concurrent sentences. “In deciding whether
to impose consecutive terms, the trial court may consider aggravating and mitigating
factors, but there is no requirement that, in order to justify the imposition of consecutive
terms, the court find that an aggravating circumstance exists. (See § 669; Cal. Rules of
Court, rule 4.425(a), (b).) Factual findings are not required.” (People v. Black, supra,
41 Cal.4th at p. 822.) And, unlike when the trial court imposes an upper term, the court
need not state on the record the “facts and reasons” for selecting consecutive terms—it
need only state its “reasons” and refer to the primary factors that support a consecutive
term. (Ibid.; § 1170, subd. (c); Cal. Rules of Court, rule 4.406(a), (b).) A single factor
will support the trial court’s decision to impose a consecutive term. (People v. Osband
(1996) 13 Cal.4th 622, 728-729.)
“‘[I]n the absence of a clear showing that its sentencing decision was arbitrary or
irrational, a trial court should be presumed to have acted to achieve legitimate sentencing
21
objectives and, accordingly, its discretionary determination to impose consecutive
sentences ought not be set aside on review.’ . . . . ‘If it has faithfully applied the
sentencing rules, the only other question is whether, all circumstances considered, the
trial court’s decision exceeds the bounds of reason.’” (People v. Reneaux (2020) 50
Cal.App.5th 852, 874, superseded by statute on other grounds as stated in People v. Cota
(2023) 97 Cal.App.5th 318, 334.)
“In making its decision, a trial court should consider, in part: ‘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; or [¶] (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.’ (Cal. Rules of Court, rule 4.425(a).)” (People v.
Reneaux, supra, 50 Cal.App.5th at p. 874.) The court may also consider any aggravating
or mitigating factors “in deciding whether to impose consecutive rather than concurrent
sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to
otherwise enhance the defendant’s sentence in prison or county jail under section
1170(h); and [¶] (3) A fact that is an element of the crime.” (Cal. Rules of Court, rule
4.425(b); see id., rules 4.421, 4.423.)
Here, the record amply demonstrates the trial court did, in fact, consider all
relevant factors bearing on whether to impose concurrent or consecutive sentences. In its
written order explaining its sentencing choices, the trial court expressly recognized it had
22
discretion whether to impose consecutive or concurrent sentences. The court set forth the
factors enumerated in California Rules of Court, rule 4.425(a), stated it could rely on
mitigating or aggravating circumstances, and noted the limitations set forth in rule
4.425(b) on its ability to rely on aggravating circumstances.
The court then analyzed the factors from California Rule of Court, rule
4.425(a)(1)-(3). “Applying the factors related to the crime, the objectives of the
kidnappings/threats and the dissuading were predominately independent of each other,
specifically instilling fear and preventing disclosure of the crime, respectively. The
objectives were also independent as to each victim, as the intent was to instill fear in each
individual victim. The crimes also involved separate acts or threats of violence. With
respect to the kidnapping/threats and dissuading, the former involved instilling fear by
the threat of violence during the period of the crime and the latter involved instilling fear
by the threat of violence that would continue after the crime had ended in order to prevent
the crime from being reported. The crimes also involved separate threats of violence to
the individual victims. Finally, the crimes were not committed at different times or
separate places.”
Last, the court stated it had considered mitigating and aggravating factors. “The
court also considers aggravating and mitigating factors, as well, unless the fact is used to
impose the upper term, to otherwise enhance the sentence, or is an element of the crime.
Because the . . . first two factors were not used to impose the upper term, those factors
strongly support running the sentences consecutively. [¶] Based on the facts of the case,
23
given that the charges involve separate victims, it is appropriate to impose the charges
consecutively to afford justice to each victim.”4
That the trial court did not expressly articulate the presence or absence of any
mitigating factors, or give reasons for rejecting mitigating factors, is of no moment. “The
trial court is not required to set forth its reasons for rejecting a mitigating factor.
[Citations.] Further, unless the record affirmatively indicates otherwise, the trial court is
deemed to have considered all relevant criteria, including any mitigating factors.”
People v. Sperling (2017) 12 Cal.App.5th 1094, 1102 [“‘The court is presumed to have
considered all relevant factors unless the record affirmatively shows the contrary.’”]; Cal.
Rules of Court, rule 4.409.) On this record, we simply cannot agree with defendant that
the trial court simply ignored or failed to give serious consideration to any mitigating
factors.5
4 The trial court did not expressly cite the aggravating factors relating to the crimes set forth in California Rules of Court, rule 4.421(a). But its reference to “the first two factors” and the fact they were not used to impose an upper term strongly indicates the court relied on the aggravating factors set forth in rule 4.421(a)(1), (2), to wit, “[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness,” and “[t]he defendant was armed with or used a weapon at the time of the commission of the crime . . . .” 5 In addition, defendant contends the trial court “ignored the fact that the evidence in support of the firearm enhancement[s] was at best inconclusive, and that a specific mitigating factor, i.e., that there was no evidence to indicate the alleged firearm was loaded or operable, applied.” (See Cal. Rules of Court, rule 4.423(a)(10) [“If a firearm was used in the commission of the offense, it was unloaded or inoperable”].) As we have already explained, ante, the circumstantial evidence in the record about the firearm was, in fact, substantial evidence and supported the jury’s true findings on the firearm [footnote continued on next page]
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III.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
MENETREZ J.
enhancement allegations. Therefore, the trial court’s implicit rejection of that mitigating factor was amply justified.
25
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions and sentence, holding that substantial evidence supported the firearm use enhancements and that the trial court did not abuse its discretion in denying a voluntary intoxication instruction or in refusing to strike the firearm enhancements.
Issues
Whether there was sufficient evidence to support the jury's findings that the defendant personally used a firearm.
Whether the trial court erred in denying a jury instruction on voluntary intoxication.
Whether the trial court abused its discretion in refusing to strike the firearm enhancements under Penal Code section 1385.
Whether the trial court was required to stay sentences for witness dissuasion and firearm enhancements under Penal Code section 654.