Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC068981
NEEDHAM, J.
Christian Leonard Ochoa de Paz (de Paz) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple offenses. He contends the court erred by imposing the upper term with respect to an enhancement charged under Penal Code section 12022.5, subdivision (a). We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
An information charged de Paz with two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), two counts of false imprisonment (§ 236), one count of first degree robbery in an inhabited dwelling (§ 212.5, subd. (a)), one count of first degree burglary (§ 460, subd. (a)), and one count of felon in possession of a firearm (§ 12021, subd. (a)(1)). The information alleged that de Paz personally used a firearm in the commission of the crimes (§§ 12022.5, subd. (a), 12022.53, subd. (b)), except for the offense of felon in possession of a firearm.
Except where otherwise indicated, all statutory references are to the Penal Code.
The matter proceeded to trial by a jury.
A. Evidence at Trial
Victim Gabriel Acosta was in the bedroom of the home he shared with his brother Julio and others, when he heard a knock on the door. About a minute later, Gabriel’s bedroom door was opened by appellant de Paz. De Paz and Julio told Gabriel to come out of his room.
As Gabriel and Julio walked toward the kitchen, de Paz and a companion pulled out handguns from their waistbands. De Paz pointed his gun at Gabriel, “really close” to his head; de Paz’s companion pointed his gun at Julio; and they ordered Gabriel and Julio to get on the floor. Gabriel and Julio complied. Gabriel saw on the kitchen counter an open black briefcase that had not been there when he arrived home.
De Paz told Gabriel: “Stay down. Don’t say nothing. This is what we do. This is our job.” As de Paz’s companion searched Julio and removed his wallet and telephone from his pants pockets, de Paz pointed both guns at Gabriel’s head and ordered him to stay down.
Gabriel asked de Paz not to kill him or Julio because they had family. De Paz told Gabriel to “shut the fuck up” or he would kill Gabriel “on the spot.” Julio asked de Paz to let Gabriel go. De Paz replied, “shut the fuck up already or I’ll kill you.”
De Paz’s accomplice tied Julio’s hands over his head, and then tied Gabriel’s hands over his head, with yellow and black shoelaces. De Paz continued to point both guns at Gabriel, telling him to stay down. Gabriel feared that he and Julio might be killed. De Paz and his companion then told them to stay down and not try anything for 10 minutes or they would return and kill them and their family. De Paz and his associate left the residence.
After the assailants left, Julio untied himself and, notwithstanding Gabriel’s pleas, retrieved a handgun from the kitchen and ran outside the house.
Andrea Valencia observed de Paz and his companion leave Julio and Gabriel’s house. De Paz got into the driver’s side of a Jeep, but before his companion could get into the passenger side, Julio walked to the front of the Jeep and fired a gun into the vehicle. De Paz’s companion ran away, and de Paz fled in the Jeep.
When Gabriel heard seven or eight gunshots, he went to his bedroom, untied his hands, and got dressed. Julio returned to the house and got his car keys. He and Gabriel, who was afraid that de Paz’s companion might return to kill them, got into Julio’s gray Jaguar. Neighbor Efrain Lombera, whom Julio called over, joined them.
Julio said he shot one of the assailants, but one ran away and Julio was going to kill him. After Lombera observed Julio change the ammunition clips in his gun, he asked Julio if he could get out of the car; Julio let him out in the next block. A short time later, Julio stopped the car and told Gabriel to get out.
Redwood City police officer Clements subsequently received a dispatch concerning a report of gunshots in the area of 950 Rose Street (within blocks of Gabriel and Julio’s home) and a dispatch that a green Jeep which might be involved was at a convenience store at Fifth and Bay Streets. Officer Clements reached the scene and observed a green Jeep parked in front of the store and de Paz standing outside, bleeding from his face. The officer saw blood in the interior of the Jeep and apparent bullet holes.
Redwood City police sergeant Hart arrived at the scene and observed blood in the Jeep, holes in the vehicle, and a chrome 10-millimeter Colt handgun with blood on it in the rear storage compartment. A magazine in the gun contained five bullets, and the gun was “locked and cocked” with a bullet in the chamber. Also found in the Jeep was a briefcase containing a cell phone and “bunk money” – a real $20 bill on the top and bottom, cardboard or newspaper of identical size in between, wrapped with a rubber band or cellophane. The briefcase was the one Gabriel had observed on his kitchen counter.
The parties stipulated that the district attorney had charged Julio with the attempted murder of de Paz, assault with a firearm, shooting at a vehicle, and mayhem, and there was a warrant for Julio’s arrest.
B. Verdict and Sentence
The jury found de Paz guilty of all counts except robbery. The jury also found the firearm use allegations true. De Paz waived a jury trial on the prior conviction allegation, which the court found true as well.
The probation officer’s report characterized de Paz’s crimes as a “particularly violent assault.” The report noted: “[de Paz’s] prior probation grant, also for false imprisonment with violence, was revoked with an outstanding warrant at the time of this offense. According to U.S. Immigration and Customs Enforcement (ICE), [de Paz] was subsequently deported on April 20, 2009. He was back within the month and committed the heinous crimes described in the present offense.” The report recommended the denial of probation and the commitment of de Paz to the Department of Corrections.
The court denied probation and sentenced de Paz to an aggregate term of 12 years in state prison, based on the following: the low term of two years for burglary, a 10-year enhancement for his use of a firearm in the commission of this offense (§ 12022.5, subd. (a)), and concurrent middle terms for the remaining crimes for which he was convicted.
This appeal followed.
II. DISCUSSION
De Paz contends the court erred in selecting the upper term for the personal gun use enhancement under section 12022.5, subdivision (a). Essentially, he urges that the court relied on the fact that he possessed a gun, and for a time two guns, during the commission of the offense, and that fact was insufficient because use of a gun was required for the enhancement itself and his brief possession of two guns did not render the offense substantially worse than it would have been.
We begin by looking more closely at the court’s statements at sentencing.
A. Background
In denying probation and imposing sentence, the court stated: “All right. First of all, probation is certainly not appropriate. It’s not legally available I don’t believe, but it’s not appropriate in any event. It’s simply a question of the appropriate term. I do have in mind the factors specifically cited by [the prosecutor] which are right out of the Code. Multiple victims, the use of a gun, clear planning, use of fake money indicates planning. The fact that people were tied up shows some sophistication, vulnerability of victims. The defendant was on felony probation for a similar sort of similar incident. All the factors that cause me to find this to be a very serious matter indicated in the rules of court. [¶] With regard to Count 6 [burglary], which I’ll use as the primary term, I’m going to – frankly I agree with the People on this one. I’m going to sentence the defendant to the low term of two years with a consecutive ten years for the use of guns consecutive being appropriate here I think in part because there were two guns apparently used in the incident. That creates a primary term of 12 years, Count 6 and the enhancement.”
B. Waiver and Forfeiture
In his reply brief, de Paz acknowledges that he did not object in the trial court to the imposition of the upper term for personal gun use. He argues that he did not waive his challenge, however, because the trial court did not provide a meaningful opportunity for him to object, since he had no advance indication of the sentence it intended to impose and the reasons therefor. (Citing People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez).)
De Paz’s argument is meritless, as demonstrated by the very case he cites. In Gonzalez, defendants were convicted of kidnapping, carjacking, and other crimes. At sentencing, the victim requested restitution. (Gonzalez, supra, 31 Cal.4th at p. 749.) The sentencing court imposed a nine-year prison term, with additional time for firearms-use and prior prison term enhancements, and ordered defendants to pay restitution. (Id. at pp. 749-750.) On appeal, defendants argued that the firearm use enhancement was improper and the restitution order violated due process because they did not have notice and an opportunity to be heard. (Id. at p. 750.) The court of appeal held that the appellants had not waived their right to object to the sentence and the amount of restitution because the trial court had not apprised them of its intended sentence and reasons before pronouncing judgment. (Ibid.) Our Supreme Court, however, reversed the judgment of the court of appeal, holding that the parties were not entitled to a tentative decision before the sentencing hearing, and the defendants had a meaningful opportunity to object because, after the trial court stated the sentences and its reasons at the sentencing hearing, the defendants objected on other grounds without the court declaring the objections untimely or impermissible. (Id. at pp. 752, 755.) In short, a meaningful opportunity to object occurs if, during the sentencing hearing, the defendant is advised of the sentence and still has an opportunity to object. (See People v. Scott (1994) 9 Cal.4th 331, 356 [meaningful opportunity to object occurs if, at the sentencing hearing and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons therefor].)
Here, the probation officer’s pre-sentence report noted that the range for the enhancement under section 12022.5, subdivision (a) was an “additional and consecutive term of 3-4-10 years, ” as is clear from the statute itself. De Paz and his attorney were present at the sentencing hearing when the prosecutor requested the upper term of 10 years for the enhancement, based on a number of aggravating circumstances. The court provided de Paz and his counsel the opportunity to respond, and neither disputed the existence of the aggravating circumstances cited by the prosecutor or their sufficiency to support the upper term (defense counsel merely asserted that the middle term for the enhancement was “appropriate”). The trial court stated it was “going to” sentence de Paz to 12 years based on the 10-year upper term for the enhancement, for reasons including the fact that “there were two guns apparently used in the incident.” The court entertained further argument on other sentencing issues thereafter, and even asked defense counsel if there was “anything else” to be brought to the court’s attention. At no time did the defense object to the imposition of the upper term on the gun enhancement, based on de Paz’s possession of the firearms.
Under these circumstances, de Paz waived his challenge to the court’s imposition of the upper term for the enhancement under section 12022.5, subdivision (a). (People v. Brown (2000) 83 Cal.App.4th 1037, 1041-1042 (Brown) [“defendant failed to object to the reasons for the sentencing choice at trial, thereby waiving [that] specific issue on appeal.... [A]ny dispute with the reasons selected for imposing the upper term of 10 years pursuant to section 12022.5, subdivision (a)(1), has been waived”].)
Nonetheless, we proceed to the merits, to explain the fatal flaws in de Paz’s arguments.
C. Merits
As relevant here, section 12022.5, subdivision (a) provides: “any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”
In deciding whether to impose a 3-year, 4-year, or 10-year term, the court may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision, which may be based on matters contained in the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, , and any evidence introduced at the sentencing hearing. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420; see People v. Hall (1994) 8 Cal.4th 950, 960-961; Brown, supra, 83 Cal.App.4th at pp. 1043-1044.)
Circumstances in aggravation include: the crime involved great violence, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; the defendant was armed with or used a weapon at the time of the commission of the crime; the victim was particularly vulnerable; the manner in which the crime was carried out indicates planning, sophistication, or professionalism; the crime involved an attempted or actual taking or damage of great monetary value; the crime involved a large quantity of contraband; the defendant has engaged in violent conduct that indicates a serious danger to society; the defendant was on probation or parole when the crime was committed; and the defendant’s prior performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(a), (b).)
We review the court’s selection of the upper term for an abuse of discretion. (Brown, supra, 83 Cal.App.4th at p. 1045.)
The court did not abuse its discretion in imposing the upper term on the enhancement under section 12022.5, subdivision (a). At the sentencing hearing, the court noted that “this is a very serious, very serious case” and found a number of these aggravating circumstances: de Paz was armed with or used multiple guns; the victims were particularly vulnerable (in that they were tied up); the manner in which the crimes were carried out (using fake money) indicated planning; the tying of his victims indicated some sophistication; and de Paz had been on felony probation for a similar sort of similar incident. No objection was made to the finding of any of these circumstances, and substantial evidence supported each of them, as shown by our recitation of the evidence and the probation officer’s report ante. The court clearly did not err.
To this list we would add that de Paz threatened great bodily harm, he engaged in violent conduct that indicates a serious danger to society, and his prior performance on probation was unsatisfactory, for which there was substantial evidence as well.
Appellant’s arguments to the contrary are utterly unconvincing. Contending that his display of the firearm was nothing more than the minimal requirement for an enhancement under section 12022.5, subdivision (a), and that his brief possession of two firearms did not make the crime more serious than it otherwise would have been, de Paz presumes that the court relied on nothing more than his possession of the gun(s) in imposing the upper term on the enhancement. He contends the court’s reference to the other aggravating factors pertained to the court’s decision not to grant probation. The record of the sentencing hearing clearly proves otherwise.
At the sentencing hearing, the parties did not even discuss the issue of probation. Instead, the prosecutor listed numerous circumstances in aggravation in order to support her request for the upper term on the enhancement, referring to multiple victims, de Paz’s use of at least one gun, his planning, the vulnerability of victim Gabriel, de Paz’s failure to take responsibility, and his felony probation at the time of the offense. Before the court referred to these factors, it had already stated that probation was inappropriate, and “[i]t’s simply a question of the appropriate term, ”indicating the court was finished talking about the probation question and was turning its attention to whether it would impose the lower, middle or upper term on the enhancement. (Italics added.) The court then stated that it had “in mind the factors specifically cited by [the prosecutor]” – which were all in the context of urging the imposition of the upper term on the enhancement. The factors the court next listed are all found in the rule of court pertaining to aggravating circumstances used in deciding whether to impose the upper term. (Cal. Rules of Court, rule 4.421(a), (b).) Although most of these factors are also listed as factors relevant to the decision to grant or deny probation (rule 4.414), one of them – “planning” – is not, being expressly listed only as a circumstance in aggravation (rule 4.421(a)(8)). And when the court indicated its “agree[ment] with the People” and selection of 10-year upper term on the enhancement, it explained that it was doing so “in part because there were two guns apparently used in the incident, ” confirming that the court’s decision was also based on factors other than de Paz’s use of the guns. (Italics added.)
Furthermore, even if the court had relied solely on de Paz’s use of the guns, the imposition of the upper term would be well within the court’s discretion. De Paz did not merely engage in the minimum firearm use required for the enhancement itself. (See People v. Wilson (2008) 44 Cal.4th 758, 806-807 [use under § 12022.5, subd. (a) includes deliberately showing a gun or otherwise making its presence known in order to intimidate the victim and complete the underlying offense, and does not require pointing the gun or issuing explicit threats of harm].) De Paz actually pointed his gun at victim Gabriel, “really close” to his head, ordered him to the floor, for a while pointed both guns at Gabriel, and threatened to kill Gabriel and his family. This alone is sufficient for imposition of the upper term. (People v. Douglas (1995) 36 Cal.App.4th 1681, 1691-1692 [manner in which the defendant used the guns – pointing a weapon at very close distance and making threats regarding the use of the gun – involved the threat of great bodily harm, which is itself a factor legally sufficient for imposition of the upper term].)
According to the instructions given to the jury, in order to find the enhancement the jury was required to find that de Paz either fired his gun, hit someone with it, or displayed it in a menacing manner. This confirms that the jury found de Paz did at least what was required to lawfully impose the enhancement under section 12022.5, subdivision (a), if not more.
Lastly, contrary to de Paz’s argument, the court’s selection of the lower term for his burglary conviction does not imply that the court believed the enumerated factors failed to justify the imposition of an aggravated term for his base offense of burglary. In the first place, a court’s selection of the term for a base offense and its selection of the term for an enhancement are distinct. (Brown, supra, 83 Cal.App.4th at pp. 1044-1045.) Moreover, the record in this case makes clear that the court selected the two-year lower term for the base offense, and the 10-year upper term for the enhancement, for the purpose of arriving at the 12-year total term that the court believed was appropriate under the facts and circumstances of the case, not because the court thought that de Paz somehow merited the low term for his “very serious” crime, for which no mitigating circumstances were presented at all.
De Paz fails to establish that the trial court erred in imposing the upper term for the enhancement under section 12022.5, subdivision (a).
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., BRUINIERS, J.