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                                           NOT TO BE PUBLISHED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
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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,                                                 C075426

         v.                                                                      (Super. Ct. No. 12F04699)

JUAN OMAR VELASQUEZ-MOSQUEDA,

                   Defendant and Appellant.




         A jury convicted defendant 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 aggregate of six years in prison.
         Defendant now contends (1) the trial court abused 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 the first contention for 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.


                                                             1
                                     BACKGROUND
       In July 2012, the victim, who was 14 years old at the time, went with two 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 that
she was going to beat up the victim. Edgar was incarcerated at the time. The phone
conversation between Pebbles and Edgar was recorded and played for the jury.
       About 35 minutes after arriving at the house, the victim received a text message
from her mother telling her to come home. When the victim attempted to leave, Pebbles
confronted her and said, “Why are you talking about me?” Pebbles punched the victim
numerous times. Pebbles’s brother, David Savala, videotaped the incident and
encouraged Pebbles to hit the victim. The videotape was played for the jury. While
Pebbles was hitting the victim, other people at the party yelled, “Get her, get her.” At
one point, A.C., M.A., David 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, David pushed the victim out the front door and told her to
go home. As the victim walked home, the previous attackers pulled up in a van and
began yelling at her, and the victim took off running. Defendant grabbed the victim by
the hair, pushed her into the back of the van and forced her into a face down position by
grabbing her hair. Defendant held the victim down for about five minutes, even though
the victim said she could not breathe.
       While traveling in the van, David told defendant to have sex with the victim in the
back seat. Defendant touched and rubbed the victim’s thigh. He also touched the
victim’s vagina over her clothes. When the victim pulled defendant’s hand away and told
him to stop, defendant punched her in the face. Defendant then repeatedly attempted to
put his hand down the victim’s bra. He finally stopped after about the fifth time the
victim told him to stop.

                                             2
       Pebbles and others in the van threatened to prostitute the victim. That night they
all stayed in the same room. The next day, Pebbles, A.C. and M.A. told the victim to
take a shower because they were going to prostitute her for money. While the victim was
in the shower, A.C. took a picture of her to post on a prostitution website.
       When the victim got out of the shower, she wrapped herself with a towel and went
into A.C.’s room. Defendant came into the 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, Pebbles told the victim she was going to make them a lot of money working as a
prostitute.
       Following a trip to Walmart where the victim was told to shoplift certain items,
Pebbles, defendant, and another individual drove the victim to an area known for
prostitution. However, because there was no one driving around, they decided to leave.
Around 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 victim 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 upon a motion by the
prosecutor.
       The probation report recommended an aggregate 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.


                                             3
identified 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 carried
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. (Rule 4.425(a)(2).) As circumstances in mitigation, the
report noted that defendant was youthful (age 19) (rule 4.408) and had no prior criminal
record (rule 4.423(b)(1)).
       At sentencing, the 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 defendant to an aggregate term of six years in prison,
consisting of the midterm of five years for the kidnapping and a consecutive one year
(one-third the midterm) for the assault. The trial court explained that it chose the
midterm for the kidnapping count because the factors in mitigation (defendant’s age and
lack of prior criminal record) balanced 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). The trial court noted defendant’s repeated failure to follow the rules in jail --
the 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 prepared, such as being in the wrong cell, improperly




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


                                              4
pushing the panic button for an hour, and sneaking out of his cell to use the phone.
The trial court said defendant’s behavior showed an increasing defiance to correctional
officers and did not reflect true repentance, sorrow or a willingness to conform 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 criminal case may not, on appeal, raise ‘claims involving the trial
court’s failure to properly make or articulate its discretionary 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 sufficient number
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 decision but did not. Nevertheless, defendant argues
his statement in mitigation and request for probation were tantamount to an objection
to the sentence imposed. We disagree. Objections to an imposed sentence must be
sufficiently specific to provide the trial court with a meaningful opportunity to correct
any errors. (People v. De Soto (1997) 54 Cal.App.4th 1, 9.) The failure to object with
specificity results in forfeiture of the claims on appeal. (Id. at p. 10.) Because defendant
failed to specifically object to the trial court’s sentencing decision, he has forfeited his
right to challenge that decision on appeal.




                                               5
                                              II
       Defendant next claims that if his trial attorney needed to object in the trial court
to preserve the first contention on appeal, defendant received ineffective assistance
of counsel.
       To establish a claim of ineffective assistance of counsel, defendant must 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, 687-688 [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 ineffective 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 corpus 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. (People v. Frierson (1979) 25 Cal.3d 142,
158; see also People v. Boyette (2002) 29 Cal.4th 381, 433.)




                                               6
       To properly analyze whether defendant’s trial counsel was ineffective in failing
to object, it will be helpful to review the applicable substantive law and the 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 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.” (Rule 4.420(b).)
       When making sentencing decisions, trial courts have wide discretion in weighing
aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569,
1582.) A single valid aggravating factor justifies the upper term. (People v. Black (2007)
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, the trial court chose the midterm sentence on the kidnapping count because
it determined that the factors in mitigation balanced the factors in aggravation. The trial
court did not abuse its discretion in weighing the aggravating and mitigating factors and
determining that a midterm sentence was appropriate. The sentencing choice was not
arbitrary or capricious and did not exceed the bounds of reason.



                                               7
       Moreover, the trial court did not err in relying 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 on 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 prostitution 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, and 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 humiliation.
       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 the 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 considering defendant’s behavior in jail.
As defendant concedes, the trial 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).)

                                              8
       Thus, on the record before us, we cannot say trial counsel’s representation was
deficient. In view of the egregious nature 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 mitigating 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 concluded 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. It is not reasonably probable that, absent the
alleged errors by trial counsel, the trial court would have chosen a lesser sentence.
Accordingly, defendant’s claim of ineffective assistance of counsel fails.
                                       DISPOSITION
       The judgment is affirmed.


                                                     /S/
                                                  MAURO, J.

We concur:



    /S/
NICHOLSON, Acting P. J.



    /S/
RENNER, J.

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