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




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069203
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF265323)
                   v.

OMAR VALENCIA GARCIA, JR.,                                                               OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
         Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
                                    INTRODUCTION
       On February 24, 2014, a jury convicted defendant of unlawful possession of a
firearm by a felon, unlawful possession of ammunition by a felon, and attempting to
dissuade a witness from testifying. In a separate proceeding, the trial court found
allegations that defendant had two prior strikes, a prior serious felony, and two prior
prison terms to be true. The trial court sentenced defendant to a doubled upper-term
sentence of six years for the unlawful possession of a firearm conviction, a concurrent
doubled middle-term sentence of four years for the unlawful possession of ammunition
conviction, and a consecutive indeterminate term of 30 years to life in prison for the
conviction for attempting to dissuade a witness from testifying.
       On appeal, defendant argues (1) the trial court abused its discretion by sentencing
him to the upper term for his unlawful possession of a firearm conviction, and (2) his trial
counsel was ineffective for failing to object to the imposition of the upper term sentence.1
We affirm.
                                          FACTS
       On March 9, 2012, defendant shot Lawrence Bierman in the arm and upper chest
with a shotgun. Following defendant’s apprehension, an information was filed charging
defendant with attempted murder, unlawful possession of a firearm by a felon, and
unlawful possession of ammunition by a felon.2 The information was later amended to
include a charge of attempting to dissuade a witness from testifying after the discovery of
a recorded jailhouse phone call in which defendant told Bierman not to appear at
defendant’s preliminary examination.



1     Defendant’s brief on appeal also asserted that his presentence custody credits had
been miscalculated. Defendant has since withdrawn that argument.
2      The information also charged defendant with one count of false imprisonment by
violence, which was later dismissed by the trial court.


                                             2.
       At trial, Bierman’s cousin, who witnessed the shooting, testified that defendant
and Bierman had argued over marijuana, and that defendant had retrieved a shotgun and
shot Bierman with it.3 Defendant took the stand in his own defense and testified that
Bierman attempted to steal some of the 40 to 45 pounds of marijuana defendant was in
possession of, and that defendant shot Bierman in self-defense after Bierman attacked
him with a knife and screwdriver. Defendant also testified that he told Bierman not to
appear at the preliminary examination for “totally altruistic” reasons.
       At the conclusion of trial, the jury found defendant guilty of the unlawful
possession of a firearm and ammunition charges, as well as the charge of attempting to
dissuade a witness from testifying, but acquitted defendant on the charge of attempted
murder. At sentencing, defendant filed a Romero4 motion to dismiss his prior strikes,
which the court denied with the following statement:

              “… As to the Romero motion, that is denied. The defendant in my mind is
       certainly a career criminal. He had a shotgun. By his own admission, he was
       possessing 40 pounds of marijuana which he was going to sell, so you talk about
       him [being] gainfully employed, [but] his only employment I see here is continued
       criminal activity.

              “He served two prior prison terms. The strikes are crimes of violence
       and/or gun charges which is exactly what we have here, four felony convictions,
       [and he] violated his parole twice. I don’t see where there’s – the court has much
       discretion here, other than to send him to prison for the Three Strikes Law given
       what I’ve seen.”
       Following this denial, the court went on to sentence defendant to a doubled upper-
term sentence of six years for the unlawful possession of a firearm conviction, a doubled
middle-term sentence of four years for the unlawful possession of ammunition

3       Bierman was called as a witness, but testified that he did not remember where he
lived in 2012, did not remember being shot, and did not remember giving a statement to
the police. The trial court subsequently found Bierman unavailable as a witness due to
his “obvious” evasion of questions and refusal to testify.
4      People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).


                                             3.
conviction, and an indeterminate term of 30 years to life in prison for the conviction for
attempting to dissuade a witness from testifying. This appeal followed.
                                      DISCUSSION

I.    The trial court did not abuse its discretion by imposing the upper term for
defendant’s unlawful possession of a firearm conviction.
       Defendant argues the trial court abused its discretion by sentencing him to the
upper term for his unlawful possession of a firearm conviction. We disagree.5
       Under the California Rules of Court, when a prison sentence is imposed, “the
sentencing judge must select the upper, middle, or lower term on each count for which
the defendant has been convicted[.]” (Cal. Rules of Court, rule 4.420(a).) In exercising
its discretion in selecting one of these terms, “the sentencing judge may consider
circumstances in aggravation or mitigation, and any other factor reasonably related to the
sentencing decision.” (Cal. Rules of Court, rule 4.420(b).) When challenging such a
discretionary sentencing choice, the burden is on the defendant to show that the
sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th
367, 376.)
       Here, the trial court imposed the upper term after citing defendant’s history of
violent crime, previous parole violations, prior prison terms, and defendant’s admission
that he was in possession of over 40 pounds of marijuana at the time the shooting in this
case took place. Prior violent crimes, prior poor performance on parole, prior prison
terms, and offenses involving large amounts of contraband are all enumerated
aggravating factors justifying an upper term sentence under the California Rules of Court.




5       Defendant did not object to the imposition of the upper term at sentencing.
However, as we must consider the merits of this argument for the purposes of evaluating
defendant’s ineffective assistance of counsel claim, we decline to consider whether or not
this argument is properly before this court.


                                             4.
(Cal. Rules of Court, rule 4.421(a)(10), (b)(1)-(3), and (b)(5).)6 Given this extensive list
of aggravating factors, we cannot conclude the trial court’s decision to impose the upper
term was irrational or arbitrary.
       Defendant also challenges the imposition of the upper term on the grounds the trial
court did not orally state its reasons for imposing that term on the record. When
imposing an upper or lower term, the trial court must state the reasons for doing so on the
record. (Cal. Rules of Court, rule 4.420(e).) Here, however, the trial court orally
weighed the factors in aggravation and mitigation before denying defendant’s Romero
motion and just moments before imposing the upper term for defendant’s firearm
conviction. Taken in context, the trial court’s oral statements regarding the Romero
motion clearly applied to the trial court’s sentencing decision, and any reiteration of the
aggravating factors would have been redundant.
       Nevertheless, even if the trial court erred by failing to engage in such redundancy,
any error was harmless. When a court fails to state its reasons for imposing a sentencing
choice, reversal is only required if there is a reasonable probability that the defendant
would have received a more favorable sentence in the absence of the court’s error.
(People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300-1301.) Given the nature of the
trial court’s statements regarding defendant’s Romero motion, we find no such
probability in this case.
II.    Defendant was not denied the effective assistance of counsel.
       Defendant also contends his trial counsel was ineffective for failing to object to
the imposition of the upper term for his firearm conviction. Again, we disagree.

6      Defendant devotes much of his brief on appeal to the argument that his crime was
not more “violent” or “aggressive” than other cases involving unlawful possession of a
firearm. Setting aside the fact defendant shot Bierman in the arm and chest while
unlawfully possessing a firearm in this case, there is no statutory or case law supporting
the proposition that upper terms are reserved only for cases which are particularly violent
or aggressive.


                                              5.
       In order to prevail on a claim of ineffective assistance of counsel a defendant must
establish (1) that counsel’s representation fell below an objective standard of
reasonableness, and (2) that there is a reasonable probability that a determination more
favorable to defendant would have resulted in the absence of counsel’s unprofessional
errors. (People v. Kipp (1998) 18 Cal.4th 349, 366.)
       Here, as noted above, the imposition of the upper term was amply supported by
the aggravating factors cited by the trial court at sentencing. Accordingly, we cannot
conclude that there is a reasonable probability that a more favorable sentence would have
been imposed had defense counsel lodged an objection to the imposition of the upper
term. With no evidence of prejudice, we must reject defendant’s argument.
                                     DISPOSITION
       The judgment is affirmed.




                                             6.
