Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. CR137080
Siggins, J.
Willis Lavone Creech was convicted by a jury of multiple counts of assault with a firearm, child endangerment, and shooting at an inhabited dwelling. His convictions were enhanced due to his use of a firearm.
Creech fired a shotgun four times at the home of his father-in-law when Creech’s estranged wife and two young children were inside. Creech contends there was insufficient evidence to support the assault convictions because his shotgun was loaded with bird shot, and he therefore lacked the present ability to harm people inside the house. He similarly argues that because his actions were unlikely to produce great bodily injury or death, the evidence was insufficient to support the convictions for child endangerment. Creech contends the separate sentences imposed for the four counts of shooting at an inhabited dwelling violated Penal Code section 654 because all four counts were part of the same transaction. Moreover, when it sentenced him to aggravated and consecutive terms, the trial court violated his right to jury trial and abused its discretion. We conclude substantial evidence supported the assault and child endangerment convictions and reject Creech’s challenges to his sentence. We therefore affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Creech and his wife Reanna lived in Modesto with their four-year-old daughter Sofia and their three-year-old son Zachary. Creech was unemployed and Reanna worked at a Manteca hospital and attended nursing school. They argued frequently, and one evening got into an argument because Creech told her he had a shotgun. Reanna did not trust Creech with guns because he was unable to control his anger. When she learned during the argument that Creech had a loaded gun in the house, she became upset and decided to leave him because she believed her life would be at risk if she remained at home. Reanna did not tell Creech before she left because she was afraid she “wouldn’t make it out the door.” Reanna took the children to her father’s house in rural Napa County, but she continued to work in Manteca.
We identify most of Creech’s family members by their first names to avoid confusion.
Before they married, Creech showed Reanna a handgun and told her “he didn’t want [her] dating anybody else and he wanted to show [her] the seriousness of [their] relationship.” She felt threatened by the presence of the gun, and they agreed he would not keep guns in the house.
A few days after the fight, Creech came to the hospital while Reanna was working. He asked for her and appeared agitated. Reanna locked herself in a bathroom and called for help. When Creech was confronted by a nursing supervisor and security officer, he left the hospital. Later that evening, Creech spoke to Reanna by telephone. He wanted to know where the children were, and Reanna told him they were at her father’s. She was concerned that if she did not tell him, she could be charged with parental kidnapping because she had taken the children from him without any legal permission to do so. She suggested to Creech that they talk the following day to arrange for him to see the children.
An officer who responded to the hospital where Reanna worked overheard two phone calls from Creech that evening. In the first call, Creech was crying hysterically and said he wanted to work things out. When Reanna asked about the gun, he said he bought it to protect himself and his family. During the second call, he became “somewhat angry, and upset,” and said he would never hurt Reanna or his family with the gun. Reanna was “extremely scared,” but the officer told her “she would have to tell [Creech] where the kids were, because she had taken the kids two days prior.” A second officer who overheard the phone calls said Creech wanted to know where his children were, and when Reanna said she was afraid of the gun, Creech said he would never hurt her or the children.
Later that night, between midnight and 1:00 a.m., Creech arrived unannounced at Reanna’s father’s house, and he spoke with his father-in-law on the front porch. When Creech demanded to see his children, his father-in-law said they were sleeping and suggested to Creech that he come back the next day. Creech said he did not want to wait until morning and exchanged words with his father-in-law, but eventually got into his car and left. When Reanna returned to her father’s house from work around 1:00 a.m., Creech was waiting there in his car. Reanna quickly drove away and Creech followed her. As Reanna was calling the sheriff’s office from her cell phone, she was stopped by a highway patrol officer. She explained the circumstances and was escorted to her father’s. When she spoke to sheriff’s deputies, she told them she would speak to Creech “during normal hours.”
Reanna was in her father’s home late the next morning when she heard a “loud... thud,” and the sound of breaking glass. She looked through a window next to the front door and saw Creech outside holding a shotgun while standing about 15 to 20 feet away from the house. Reanna shouted to her stepsister Jennifer to grab Sofia, who was playing in the study at the front of the house. As Jennifer ran to the study, she saw “glass... flying everywhere.” When Jennifer looked out a window in the study, she saw Creech standing about 15 to 30 feet away, aiming his shotgun and tracking her and Sofia with the barrel of the gun. Meanwhile, Reanna grabbed Zachary, dropped to the floor with him and sought cover in a downstairs bathroom where they were joined by Jennifer and Sofia.
A laborer who was working in the kitchen also saw “glass flying through the front room” where Sofia was when the shooting started.
Reanna’s stepmother Juliane heard a “very loud pop” from the front of the house. She looked out the window and made eye contact with Creech, who was standing outside about 15 feet away from the front door, holding a shotgun. Reanna screamed, “he’s gonna kill us, he’s got a gun,” and Juliane ran to lock the front door while Creech continued to shoot. There was a lot of loud yelling, and Sofia was “screaming her little head off.” Juliane dialed 911, told everyone to go into the bathroom, and ran upstairs to get a handgun her husband had insisted on bringing into the house “in case [Creech] showed up.” Juliane went out onto the upstairs porch intending to fire a warning shot, but had trouble operating the gun. Jennifer went upstairs to help her and they fired two warning shots.
Juliane’s husband, Creech’s father-in-law, was out running an errand at the time.
Sheriff’s deputies arrived minutes later. Creech was gone. The officers found three shotgun shells in the driveway in front of the home, and four shotgun “wads” or “shot collars” just in front of the front steps. The front door was perforated with many small holes in its wood surface that penetrated less than an eighth of an inch, and the outer pane of the double-paned window in the upper portion of the door was broken. Both layers of a double-paned window in the study were also broken. A sheriff’s deputy and an investigator from the district attorney’s office determined that a person standing in the driveway near where the shotgun shells were found would be able to see objects inside the study through the window.
Later that day, Newark police responded to a report of an attempted suicide at the home of Creech’s parents, and found Creech lying on a bed unconscious. A search of Creech’s home in Modesto uncovered a Mossberg shotgun owner’s manual, a box of 12-gauge shotgun shells, and a recent computer printout with directions from the Modesto residence to St. Helena in the vicinity of Creech’s father-in-law’s home. A detective also found a cylindrical piece of metal under the front seat of a pickup truck rented to Creech.
Creech was charged with three counts of attempted murder, three counts of assault with a deadly weapon and by force likely to produce great bodily injury, four counts of shooting at an inhabited dwelling, and two counts of felony child endangerment. In connection with all counts other than shooting at an inhabited dwelling, it was also alleged that Creech personally used a firearm.
The counts charging assault with a deadly weapon were later amended by the court to charge assault with a firearm.
John Thornton was called as an expert in criminalistics and forensic science. He examined the scene and testified that the distribution and number of holes showed a shotgun was fired three times at the front door using number eight shot. Based on the location of the shotgun wads and expended shells, and the shot dispersal pattern on the door, he estimated the shooter was between 40 and 50 feet from the door when the shots were fired. Dr. Thornton also examined the broken window in the study and based on the blast pattern on the inner pane of glass, he concluded the shooter stood about 20 feet away when the shot was fired at the study window. The study had been cleaned before he inspected it, and Thornton saw no evidence of pellet strikes on the walls or furnishings of the study. But he found many pellets in the debris that was collected when the room was cleaned.
Dr. Thornton conducted ballistics tests using gelatin in order to calculate how far the shotgun pellets fired by Creech could penetrate human tissue. The tests showed that when fired from a distance of 45 feet, number eight pellets could have penetrated an average of one and one half inches. When fired from the same distance through double-paned glass, there could have been no significant penetration. No tests were performed from any other distance. Dr. Thornton also determined that the metal tubing found in the truck rented to Creech was once part of the barrel of a 12-gauge Mossberg 500.
Brandi Rowe testified she had a prior relationship with Creech, and they had a child together. When he was angry, Creech would lose his temper and punch holes in the walls with his fists. He also kicked her when she was approximately six months pregnant. Creech also bought a shotgun during their relationship and when they argued, would tell Rowe “there’s always one in the chamber.” He once told her he had taken the gun along and followed her to school “and was just waiting for [her] to come out with some guy.” Creech used to page Rowe with the number “187” when he was angry, and she understood it to be a reference to the Penal Code section defining murder.
The defense expert was James Norris, a forensic science consultant with a degree in chemistry who had experience working in forensics for various law enforcement agencies. Norris reviewed photos of the scene, police reports and transcripts of testimony. Based upon the pellet distribution and the location of a shotgun wad found near the study window, he opined that “the shot to the [study] window appeared to have come from, in general terms, about the same location [as] the other shot[s] to the front door.” Thus, he estimated the shooter to have been about 50 feet from the window when he fired the shot, but he could not be sure because an element of chance also plays a part in where an expended shotgun wad will land.
Creech also testified and denied that he ever threatened his former girlfriend with his shotgun. He said that “everyone knew 187... it’s an expression in page mail that you’re upset with someone.” He said he kicked Rowe when she was pregnant as a “last resort” to get her out of his way when he was leaving for work, and he denied that he followed her to school with a gun.
During the months leading up to the shooting, Creech testified that he and Reanna had financial difficulties, and they argued frequently. One of the things they argued about was whether he was actually Sofia and Zachary’s father. Creech admitted he “hit the computer, and punched the wall, and pushed the door down” when he suspected Reanna of infidelity, but that DNA tests subsequently showed he was the children’s father. Over the previous 10 years, he had broken things in anger, including the walls of the family home, about 20 to 25 times. He bought a Mossberg shotgun after a gang altercation in the neighborhood in order to protect his family, but he never kept it loaded and it had a child safety lock. When he told Reanna about the gun a couple of weeks after he purchased it, she expressed disbelief and disappointment that he had not told her about it earlier. When he showed her the gun, she looked “stunned.” He later found her crying in the bedroom, but thought his explanation that he bought it because he had a duty to protect his family resolved the matter.
After the argument over the shotgun, Creech left and drove to his Mother’s home. He frequently went for a drive after an argument to think things over. When he returned he was surprised to discover that Reanna had left with the children. She never told Creech that she intended to leave. When he got home and she was gone, Creech thought it might be good for the couple if he and Reanna spent some time apart. So, he decided to leave immediately to visit a cousin in Tennessee. He drove as far as New Mexico before he decided to turn around.
When he got home Creech went to the children’s school. There he learned that Reanna had taken the children out of school for a week. This upset him and he went back to the couple’s apartment and threw all her belongings into the trash. He made many phone calls to people he knew looking for Reanna and the children. When he could not locate them, he went to Reanna’s workplace as a “last resort.”
After he left Reanna’s workplace, Creech spoke to Reanna by phone. He told her he would do anything to save their marriage. But he claimed he had a right to own a gun and that he had it to protect her and the children. After the conversation with Reanna, Creech drove to her father’s house. Although he arrived at midnight, Creech thought his father-in-law was “an understanding person” who would “invite [him] in” to see his children. When his father-in-law said “no” and told him they could “take care of that problem right now,” Creech felt threatened. He knew his father-in-law owned weapons. He drove away from the house to obtain a cell phone signal, and did not know Reanna was driving a car that he followed away from the property. When he got a signal on his phone, he called sheriff’s deputies and told them he was threatened when he tried to see his children.
There was a roadside meeting among sheriff’s deputies, Creech, Reanna and her father. Creech became “very, very angry” after he heard his father-in-law tell the deputies that Creech could come back and see his children during the daytime. That was when he decided to take revenge on his father-in-law by shooting at his house. He drove back to Modesto, and decided to rent a different vehicle because he was concerned that law enforcement officers would recognize his car. He took his shotgun and number eight “bird shot” shells because he did not intend to cause “major damage.” Although he had not slept in a long time, Creech drove back to his father-in-law’s home. When he got there, the gate at the bottom of the driveway was locked. He saw vehicles outside the house, but not his wife’s, and he saw no activity inside the house. He thought no one was at home. He was not wearing his usual glasses and could see no movement through the window of the study. It never occurred to him to ring the door bell or look in the window to make sure the children were not inside, and he never heard Sofia scream. He quickly fired four shots from a distance of 40 to 50 feet and drove away.
After the shooting, Creech stopped at a hardware store and bought a hacksaw to cut up his shotgun. He cut up the gun and threw away all the pieces except the one accidentally left under the seat of the rented truck. He also bought new clothes and discarded his old ones. He went to his parents’ house in Newark, where he was told his father-in-law had called and said he faced charges of attempted murder. Creech thought his father-in-law was “railroading” him, and took a number of pills thinking his parents would call 911. He was later taken by ambulance to the hospital.
Creech claimed he did not intend to hurt his children or his wife’s relatives, and did not see them in the house. When he was asked why he did not get rid of the gun to improve his relationship with Reanna, Creech answered, “Because we hadn’t yet sat down and gotten to the bottom of it.” After Reanna left their home, he resolved to heal their marriage, but it never occurred to him to get rid of the gun.
The jury acquitted Creech of the attempted murder charges, but convicted him on the remaining counts and found the firearm use allegations true. At the sentencing hearing, the court heard from Creech’s father-in-law, Juliane, Reanna, Jennifer, and Creech. Creech’s father-in-law and Jennifer said the shooting had changed their lives. Juliane was terrified Creech would return to their home and kill them. All the family members described the trauma inflicted upon the children and their continued panic and fear. The family’s “greatest fear” was that Creech would “come back and finish the job he started.”
Reanna explained that she feared “the man who allows himself to be so frustrated, angry, enraged, and full of hatred that he resorts to violence and revenge to resolve it.” Creech’s conduct caused “the most horrible feeling of helplessness, terror, and sheer horror that [she and her family] ha[d] ever experienced.” Reanna continued to have vivid nightmares of Creech “chasing [her] and the children, catching [them], torturing [them] for hours....” Her children “were robbed of their innocence, of their father, of their security, of their stability, their lives as they knew them.” She initially left Creech because she feared for her safety and her children after he bought the gun without her knowledge, and she remained very concerned about her ability to protect the children from Creech.
Creech told the court he “had no intention of ever hurting anyone in that house. I had never hurt my wife and my children, and I never would.” He spoke at length about his frustrations with his father-in-law, and said he did not know why his wife was scared of him. Creech considered his daughter Sofia was “used as the big icon in the case,” whereas his wife Reanna “will testify that she knows at the bottom of my heart that I would not do anything to that little girl.” Creech concluded by reading a letter that apologized to the victims, and said he never meant to cause them pain. He assumed nobody was home when he vandalized his father-in-law’s property.
The court denied probation and imposed an aggregate prison term of 31 years, four months, consisting of the upper base term of six years for the child endangerment of Sofia, plus 10 years for Creech’s use of the firearm; a concurrent six-year upper term for child endangerment of Zachary, plus 10 years for the firearm use enhancement; consecutive terms of one year, eight months (one third the midterm) for each of the four counts of shooting at an inhabited dwelling; and consecutive terms of one year (one third the midterm) for the assaults with a firearm on Jennifer and Juliane, plus three years, four months (one third the upper term) for the enhancements due to his use of a firearm on each of those counts. The court also imposed a concurrent four-year upper term and a 10-year upper term enhancement for the assault with a firearm on Sofia that was stayed pursuant to section 654. Creech timely appealed.
DISCUSSION
A. Sufficiency of the Evidence to Support the Assault Convictions
“Section 245, subdivision (a)(2), punishes ‘[a]ny person who commits an assault upon the person of another with a firearm.’ Assault is defined as ‘an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.’ (§ 240, italics added.) ‘Once a defendant has attained the means and location to strike immediately he has the “present ability to injure.” ’ ” (People v. Licas (2007) 41 Cal.4th 362, 366-367, quoting People v. Valdez (1985) 175 Cal.App.3d 103, 113 [affirming an assault conviction for shooting at a cashier protected by bulletproof glass].)
Creech argues there was insufficient evidence to support the assault convictions. He says that the fact his shotgun was loaded with “bird shot” negated his ability to injure anyone in the house. Three of the shots failed to completely penetrate the front door, and although one of his blasts broke both panes of the window in the study occupied by his young daughter, there was no evidence that any of the pellets entered with enough force to strike anyone in the room. Thus, we consider whether the evidence shows that Creech had, as required by section 245, the “present ability” to commit a violent injury upon a person when he shot at his father-in law’s home.
In People v. Chance (2008) 44 Cal.4th 1164, our Supreme Court made clear that the present ability element is satisfied when “ ‘a defendant has attained the means and location to strike immediately.’ ” (Id. at pp. 1167-1168 [citing cases].) Here, Creech had the means and location to inflict serious injury on the occupants when he fired his shotgun at his father-in-law’s home while he was standing 45 feet from the front door. He makes no compelling argument that his choice of ammunition lessened the dangerousness of his conduct or his ability to inflict injury, and the facts show otherwise.
Pellets of bird shot were collected from the debris cleaned out of the study after Creech shot out the window, and witnesses said glass flew into the room when the window was shattered. Creech’s daughter Sofia was then playing in the study and was retrieved by her aunt when the shooting started. When her aunt was taking Sofia out of the room, she could see Creech through the broken window tracking her with the barrel of his shotgun. Reanna’s stepmother was also in harm’s way. She ran to lock the front door while Creech was shooting at it. Meanwhile, a terrified Reanna sought cover with the couple’s son Zachary in a downstairs bathroom.
Creech’s attempt to support his argument with the fact that none of the victims were injured and that Sofia was never struck by broken glass misses the mark. An assault may be committed even where there is no physical impact upon the body of the victim and it is immaterial whether a victim suffers physical injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) As our Supreme Court instructs, “it is the ability to inflict injury on the present occasion that is determinative, not whether injury will necessarily be the instantaneous result of the defendant’s conduct.” (People v. Chance, supra, 44 Cal.4th at p. 1171.) Here, Creech had the ability to inflict injury, and it was providential that he did not.
For purposes of our review, it makes no difference that the experts disagreed on the distance from which the shot was fired at the study window. We are required to draw all reasonable inferences in favor of the judgment. (See People v. Carpenter (1997) 15 Cal.4th 312, 387; People v. Bean (1988) 46 Cal.3d 919, 932-933.) It is also irrelevant for our purposes that Creech selected number eight bird shot ammunition rather than a larger caliber. The ammunition he used was capable of penetrating human tissue and causing injury. For this reason we also reject Creech’s attempt to analogize these circumstances to cases holding that an assault cannot be committed with an unloaded or toy gun. Creech used a loaded lethal weapon.
The jury could reasonably infer from the evidence that Creech had the present ability to inflict injury on Jennifer, Sofia and Juliane. (See People v.Chance, supra, 44 Cal.4th at pp. 1171-1172; see also People v. Raviart (2001) 93 Cal.App.4th 258, 267 [fact that victim “may have been sheltered, in whole or in part, by [a] building did not preclude the jury from finding defendant had the present ability to injure him”].) Viewing the evidence in the light most favorable to the judgment, there is substantial evidence in the record to support all three convictions for assault.
B. Sufficiency of the Evidence to Support the Child Endangerment Convictions
“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering” is guilty of child endangerment. (§ 273a, subd. (a).) Creech contends there was no substantial evidence that his conduct endangered his children “under circumstances or conditions likely to produce great bodily harm or death.” We disagree.
The child endangerment law is intended to protect children from abusive situations where “ ‘ “the probability of serious injury is great.” ’ ” (People v. Valdez (2002) 27 Cal.4th 778, 784.) There is no requirement that great bodily injury actually occur. (Ibid.) We reject Creech’s suggestion that the prosecution was required to offer specific evidence that the pellets he fired could have penetrated the skin of Sofia and Zachery. It was undisputed that four-year-old Sofia was in the study when Creech shot out its seven-foot wide window, and Reanna testified she grabbed their three-year-old son Zachary by the hand and pulled him to the floor as they sought refuge in a safer part of the house after she heard a shot, looked out the front window, and saw Creech standing there with the shotgun. The jury could reasonably infer that Zachary could have been seriously injured had one of the shotgun blasts broken the sidelight window of the front door. There was substantial evidence that Creech’s conduct endangered his children under circumstances likely to produce great bodily harm or death.
C. Application of Section 654 to the Multiple Convictions for Shooting at an Inhabited Dwelling
Section 654, subdivision (a) provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision....” Section 654’s limitation on multiple punishment applies when a defendant’s course of conduct “violates more than one statute but constitutes an indivisible transaction.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible.” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.) “Where offenses are separately punishable, the gun use enhancements for each offense may be separately imposed.” (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1300.)
Creech’s opening brief argues that the separate sentences and multiple firearm use enhancements imposed for his four convictions for shooting at an inhabited dwelling violated section 654 because they were all part of one transaction and were committed with the single objective of inflicting damage on his father-in-law’s house. But when the trial court considered whether Creech had multiple objectives, the court found Creech’s conduct became more egregious with each successive shot. He had time to reconsider his action between each of the four shots, and each required a separate pull of the trigger. The court noted that Creech looked at Jennifer and Juliane through the windows as he shot at the house, that he changed his position to shoot at the study window, and that people in the house were screaming, yet Creech continued to shoot. The court correctly relied on People v. Trotter (1992) 7 Cal.App.4th 363, when it imposed the separate sentences. Multiple counts of assault with a firearm and firearm use enhancements may be separately punished based on separate shots fired by the defendant. (Ibid.) Creech does not attempt to distinguish Trotter, nor does he address it in his reply brief.
The purpose of section 654 is to ensure that a defendant’s punishment is commensurate with his culpability. (People v. Perez (1979) 23 Cal.3d 545, 550-551.) A person who fires a shotgun four times at an inhabited dwelling can reasonably be considered more culpable than a person who fires only once. Creech has not shown that section 654 prohibited separate punishment for his four convictions for shooting at an inhabited dwelling under the circumstances here.
We therefore do not address the Attorney General’s contention that the separate sentences imposed for the four counts of shooting at an inhabited dwelling also came within an exception to section 654’s prohibition on multiple punishment for cases involving acts of violence against multiple victims. Creech’s opening brief also summarily asserts that it was error to convict him of four separate offenses of shooting at an occupied dwelling, but he presents no further argument on that point, contending instead that it was the imposition of separate sentences that violated his rights under section 654. A point “perfunctorily asserted without argument in support” is not properly raised on appeal (People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15), and we will not discuss the matter further.
D. Right to Jury Trial
Creech contends the trial judge’s imposition of aggravated terms violated his right to jury trial under Cunningham v. California (2007) 549 U.S. 270, but he acknowledges that the determinate sentencing system applicable in this case was determined by our Supreme Court to satisfy Cunningham. (See People v. Sandoval (2007) 41 Cal.4th 825.) Since we are bound by the Supreme Court’s decision in Sandoval, we will not further address this issue. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
E. Trial Court’s Exercise of Discretion in Imposing Sentence
Finally, Creech challenges the imposition of aggravated prison terms and consecutive sentences in this case as an abuse of the trial court’s discretion. He contends the facts of his offenses were less serious than the average circumstances of such offenses, his criminal record was insignificant, and factors the court found in aggravation were unreasonable.
The probation officer’s report stated that a record check revealed no prior convictions and that Creech had “an insignificant record of criminal conduct,” although Creech’s own statement in mitigation indicated he was previously convicted of “delaying a peace officer” and received “a short jail sentence for this offense....”
It is Creech’s burden “ ‘to clearly show that the sentencing decision was irrational or arbitrary.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) “Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” (Id. at p. 978.) Creech argues the court should have imposed mitigated terms, or at most, midterm concurrent sentences because he had an insignificant criminal history, he armed his shotgun with less lethal birdshot, and no one was injured (or even at risk of such injury, according to his theory of the case).
When we examine the trial court’s rationale for its sentencing choices, we see no abuse of discretion. Creech fired live ammunition into a house occupied by his wife and children. He did nothing to ensure they were not at home when he began shooting. He planned his attack by using a rental truck that would not be recognized, and he tried to avoid detection by destroying his shotgun. His conduct was violent and posed a serious danger to society. The trial court correctly considered these circumstances to aggravate Creech’s offenses.
Two circumstances mitigated his conduct. He had an insignificant prior record of criminality, and he appeared to have performed successfully on a prior probation. Creech also points out that the record does not support the trial court’s finding of an additional aggravating factor: that he took advantage of a position of trust or confidence. No matter. A single factor alone can justify an upper term sentence. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Here, we have no reason to conclude the aggravated terms and consecutive sentences imposed by the trial court were an abuse of discretion.
Because we reject Creech’s challenge to the court’s exercise of its sentencing discretion on the merits, we do not address the Attorney General’s argument that these claims were forfeited because Creech failed to object at the sentencing hearing when the court explained its reasons for imposing upper terms, or Creech’s contention that his sentencing memorandum in the trial court was sufficient to preserve these issues.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J. Jenkins, J.