Filed 6/9/15 P. v. Paredes 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E060788

v.                                                                       (Super.Ct.No. RIF1305910)

CARLOS ALONSO PAREDES,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Rafael A. Arreola, Judge.

(Retired Judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.

Ragland, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       Defendant and appellant Carlos Alonso Paredes was sentenced to prison after

being convicted of robbery (Pen. Code, § 211)1, intimidation of a witness (§ 136.1),

assault likely to cause great bodily injury (§ 245, subd. (a)(4)), and battery causing great

bodily injury. (§ 243, subd. (d).) The jury also found true that defendant inflicted great

bodily injury on the victim. (§12022.7, subd. (a).)2 He appeals, arguing that the

imposition of separate sentences for the robbery and dissuasion convictions violated

section 654, and that the trial court abused its discretion in declining to place him on

probation. We disagree and affirm the judgment.

                                 STATEMENT OF FACTS

       On April 28, 2013, Efren Garcia heard a noise near his apartment building and

went to investigate. He saw a man with a black hat and discovered that his car had been

opened and items stolen, including a vacuum and toolbox.3 Garcia called police as the

man with a black hat and his companions loaded his property onto a dolly. He had

previously seen the thieves gathered around his building or in the area.


       1   All subsequent statutory references are to the Penal Code.

       2  The jury also made a true finding that the crimes were committed while
defendant was out on bail. (§ 12022.1.) However, this finding was by agreement
stricken because the statute requires that the defendant have been on bail for a felony,
and defendant eventually pleaded guilty to a misdemeanor in the earlier case (the car
burglary discussed below). The probation officer’s report shows the misdemeanor
conviction under section 496, subdivision (a) (receiving stolen property), was dated
May 10, 2013—the day before the assault on the victim. It is therefore unclear whether
he was still out on bail or had been released to probation.

       3   Garcia was essentially homeless and often lived in his van.


                                              2
       Officer Christi Arnold of the Riverside Police Department testified that on

April 28, 2013, she responded to a reported vehicle burglary. On arrival, Garcia directed

Officer Arnold and her partner to the rear of the building and then pointed at three

subjects with a dolly full of property. The man pushing the dolly was defendant. At the

time, Garcia approached within a few feet of defendant as he identified his property; this

scene lasted several minutes as the reporting officers tried to sort matters out. Officer

Arnold testified further that defendant told her he was just holding the property for a

friend and admitted that he thought it might be stolen. Eventually defendant and another

man were taken into custody.

       Garcia further testified that on May 11, 2013, he was walking to a grocery store

when one of the thieves and another man approached him. The other man asked Garcia

why he was “pointing the blame at him?” The man who had been pulling the dolly at the

time of the theft then struck Garcia in the face three times, knocking him down. When

Garcia was able to stand he realized that his necklace was missing and one of the

assailants appeared to have it in his hand. As they departed, one of the men threatened

him with language similar to “you’ll see what’s going to happen.”4

       As a result of the attack, Garcia’s nose was broken and a crown on one tooth was

damaged.




       4It will be noted that Garcia at trial persistently refrained from identifying
defendant as having been involved in either incident.



                                              3
       The prosecutor then asked Garcia about his photo identification of the person who

hit him. Garcia testified that he “wasn’t sure” it was the perpetrator and that “I don’t

remember too well because I’ve never seen him that close.” He also claimed that the

same two men who had accosted him on May 11 had approached him that morning on his

way to court, again making threatening comments. He insisted that the person shown in

Exhibit 3 (presumably a photograph of defendant) was not involved in either the original

theft or the threats and assault incident and specifically he had never seen defendant

before in his life.5

       On re-direct, after confirming to defense counsel that defendant was not his

assailant, Garcia admitted that he was frightened of what would happen if he identified

defendant as the perpetrator.

       The next witness was Officer Neely Nakamura, a fluent Spanish speaker who had

been dispatched to assist when Garcia called police after being assaulted on May 11. She

found Garcia bleeding from the nose and mouth and was able to observe that his shirt was

torn at the neck and that there was a slight scratch mark on his neck.6




       5Garcia was clearly reluctant to testify and, as relayed through an interpreter, his
testimony was evasive, inconsistent and difficult to follow.

       6   Garcia was wearing a sleeveless tank top described by Officer Nakamura
initially as a “wife beater[].”


                                              4
       Officer Nakamura testified that Garcia told her that the same persons that had been

arrested for the car burglary were the ones that had attacked him. He told her that after

he was punched, his necklace was yanked off. Garcia also reported the threats and

questions about why he was dealing with police and being told that the attack was “what

you get for getting involved.”

       Officer Nakamura later met with Garcia again and showed him photographs of the

two men arrested for the car burglary, one of which depicted defendant. Garcia—who

also reported to her that he had previously been familiar with, but not friendly with, a

group of young men hanging out in the neighborhood that included defendant—

immediately identified defendant as the man who punched and threatened him. Garcia

expressed no doubt or equivocation about his identification.

       Following the return of the jury’s verdict as set out above, the matter was

continued for sentencing. The probation report reflected that defendant, then 25 years

old, had no juvenile record and no adult record other than driving offenses. He had

worked at various construction jobs and at the time of the offenses was working part-time

at an athletic field concession stand. However, defendant also expressed the view that he

should not have been convicted once the victim refused to identify him. Furthermore,

with respect to the car burglary, defendant told the probation officer that he was helping




                                             5
his cousin move and “ ‘some guy’ ” offered him $5 to help him move.7 The

recommendation was that defendant be placed on probation.

       The probation officer did note that defendant was ineligible unless the court could

find an unusual case. (§ 1203, subd. (e)(3) [any person who has inflicted great bodily

injury].) However, the probation officer believed that defendant qualified as an unusual

case under California Rules of Court, rule 4.413(c)(2)(c), “[t]he defendant is youthful or

aged, and has no significant record of prior criminal offenses.”

       At the sentencing hearing, the court remarked that it was concerned that defendant

was not taking responsibility for his acts and was in fact casting himself as a victim. It

also noted that (despite his lack of prior record), he had committed the current offenses

immediately following the car burglary. It acknowledged that, at the age of 25, defendant

could probably qualify for treatment as an unusual case, but felt that given “the overall

picture and his attitude,” it could not make such a finding. Hence, it imposed a prison

term of five years. The sentence was composed of a two-year low term for the robbery

and a three-year mandatory enhancement for the great bodily injury finding. The court

stayed sentencing of the assault and battery charges under section 654 and ran all other

terms and enhancements concurrently.




       7 It is unclear whether “ ‘some guy’ ” was the cousin, or a third person who just
also needed assistance. It should be noted that the car burglary took place in the “early
morning hours.”


                                              6
                                      DISCUSSION

                                            A.

       Defendant first argues that his concurrent sentence for dissuading a witness was

prohibited by section 654. When that statute applies, the proper procedure is to impose

sentence and stay it, not impose it to run concurrently. (People v. Alford (2010) 180

Cal.App.4th 1463, 1469.) However, if the crimes arguably subject to section 654 have

separate criminal intents and objectives, separate unstayed sentencing is appropriate.

(People v. Sok (2010) 181 Cal.App.4th 88, 99.) We uphold the trial court’s determination

as long as it is supported by substantial evidence. (People v. Clair (2011) 197

Cal.App.4th 949, 959.) The determination may be express or implied by the sentence

imposed. (See People v. Galvez (2011) 195 Cal.App.4th 1253, 1263.)

       In this case the finding of separate objectives was amply justified. Defendant and

his companion first accosted Garcia with the specific intent to threaten him and dissuade

him from pursuing or participating in the criminal prosecution concerning the car

burglary. In furtherance of this intent defendant struck Garcia repeatedly in the face.

Either defendant or his companion then ripped the chain from Garcia’s neck. This act

could theoretically have been prompted by the same objective—to show Garcia that his

failure to recant would lead to further losses.8 However, it could also—and more

probably—have been the result of defendant’s having spotted the chance to profit


       8 Defendant argues that the necklace was “broken” just as were Garcia’s nose and
a tooth. But the necklace was not just broken, it was taken.


                                             7
financially from the assault on the victim. Thus, the robbery was distinct from the threats

and section 654 did not prohibit separate punishment for the two offenses.

                                             B.

       Defendant then argues that the court abused its discretion in sentencing him to

prison rather than placing him on probation. Again we disagree.

       As defendant recognizes, the trial court has broad discretion in determining

whether to place a defendant on probation and the defendant bears a heavy burden in

attempting to show that there has been an abuse of that discretion. (People v. Aubrey

(1998) 65 Cal.App.4th 279, 282.) He also acknowledges that due to the finding that he

inflicted great bodily injury on the victim, he is presumptively ineligible for probation.

(Pen. Code, § 1203, subd. (e)(3).) However, he argues that because he was “extremely

youthful” and had a nominal prior record, the trial court did abuse its discretion.

       The criteria which may support a finding of an unusual case and therefore

overcome the presumption of section 1203, subdivision (e)(3), are set out in California

Rules of Court, rule 4.413. It should be noted, however, that the mere existence of any

such factor does not require the court to find an unusual case, it merely allows the court

to do so. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.)

       The only factor under which defendant qualifies is that of rule 4.413,

subdivision (c)(2)(C)—“[t]he defendant is youthful or aged, and has no significant record

of prior criminal offenses.” Although defendant describes himself as “extremely

youthful,” as he was 24 years old when the crimes were committed, we think that simply



                                              8
“youthful” is the best he can argue. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 451 [17

years old]; People v. Barrera (1993) 14 Cal.App.4th 1555, 1568 [31 years old “hardly []

youthful”].) When the car burglary conviction is added to his history of driving offenses,

it becomes a closer question as to whether his prior record was not “significant” (Cal.

Rules of Court, rule 4.413(c)(2)(C), but for purposes of argument we will agree that

defendant qualified and that the trial court therefore could have placed him on probation.

       Nevertheless, we find no abuse of discretion in the failure to do so. Section 1203,

subdivision (e), requires that the “interests of justice” be served by the grant of probation.

In this case the trial court was aware that defendant had pleaded guilty in the car burglary

case. He had subsequently attempted to pervert justice by threatening the victim and

dissuading him from testifying, and had also struck him repeatedly with enough force to

break his nose. Defendant then, in a gratuitous act of criminality, participated in the

forcible taking of Garcia’s necklace. Thus, although defendant’s initial offense (the car

burglary) was apparently opportunistic and stealthy, he then manifested a willingness to

use violence to avoid the consequences of his crime and also had no qualms about once

again taking the victim’s property. As the trial court noted, in discussing the matter with

the probation officer defendant appeared to reflect the belief that because he had been

largely successful in his threats, he should escape punishment in the current case.

       These factors do not bode well for defendant’s future conduct and certainly do not

suggest that the interests of justice require that he be granted the leniency of probation.

There was no abuse of discretion.



                                              9
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               HOLLENHORST
                                                             J.
We concur:



RAMIREZ
                    P. J.



CODRINGTON
                       J.




                                     10
