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People v. Alvarado2/20/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Jorge Luis Alvarado pleaded guilty to a felony charge of physically abusing the mother of his child. (Pen. Code, § 273.5, subd. (a).) He also admitted an enhancement for being a repeat offender. (Pen. Code, § 273.5, subd. (e).) He also admitted being in violation of his probation granted in 1999 for conviction of cohabitant abuse. (Pen. Code, § 273.5, subd. (a).) Defendant was sentenced to state prison for the middle term of four years for the most recent offense with a consecutive effective term of 16 months imposed for the 1999 offense.
On appeal, defendant contends that remand for resentencing is required because the trial court erred when it failed to state reasons for imposing consecutive terms, and, if we should find that his failure to object to the court's omission waives the issue, remand is still required because he received ineffective assistance of counsel. We conclude no remand is required.
Here, after imposing the middle term of four years for the most recent offense, the court imposed a consecutive term of 16 months for the 1999 case. The court did not state reasons for imposing the consecutive term, and defendant did not object to the failure. While a trial court is required to state reasons for imposing a consecutive term (People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638), a defendant's failure to object to the omission forfeits the issue on appeal (People v. Bautista (1998) 63 Cal.App.4th 865, 868).
Nor do we find counsel ineffective for his failure to have objected, as defendant claims. To establish ineffective assistance of counsel, defendant must demonstrate that (1) his attorney's performance was deficient under an objective standard of professional reasonableness, and (2) in the absence of the deficiency it is likely that he would have obtained a more beneficial result. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) Defendant cannot establish the second prong of the test.
Aside from the two instant felonies for which defendant was sentenced, his criminal history is as follows: In 1978 he was convicted of misdemeanor burglary (Pen. Code, § 459), for which he received two years' probation; in 1990 he was convicted of illegal possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), for which he received diversion; in 1993 he was convicted of felony spousal abuse (Pen. Code, § 273.5), for which he received three years' probation; however, probation was twice revoked but reinstated both times; in 1994 he was convicted of driving under the influence (Veh. Code, § 23152, subd. (a)), for which he received five years' summary probation; and in 1998 he was convicted of driving with a suspended license (Veh. Code, § 14601.1), for which he was fined.
As to the most recent offense, the victim, who was also the victim of the 1999 Penal Code section 273.5 violation, got into an argument with defendant and told him to leave the house. He became violent, punched her in the head with his fist numerous times, pulled her hair, slammed her face into the floor and wall, "stomped" on her stomach, and held her by the throat with both hands. He stopped assaulting her because she screamed for help, thereby affording her the opportunity to get her son and leave the house. She reported the matter to the police and was taken to a local hospital for treatment.
Given defend
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