Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130745. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Tamara Zivot, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Octavio Jesus Ochoa was convicted by a jury of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)—count 1), driving with a blood-alcohol level of 0.08 or more (Veh. Code, § 23152, subd. (b)—count 2), and driving while the privilege had been revoked for previously driving under the influence (Veh. Code, § 14601.2, subd. (a)—count 3). The jury also found true, as to counts 1 and 2, the allegation that defendant’s blood-alcohol level was 0.15 or more. (Veh. Code, § 23578.) Defendant contends the trial court abused its discretion by sentencing him to the upper term. We affirm.
BACKGROUND
On April 30, 2006, defendant rear-ended a car while driving his truck. At first defendant claimed to be the driver and to have had a few beers; later he claimed to have had “not one drop” and that the driver was a “Mr. Ramirez” or “Jose.” Two iterations of a breath-alcohol test performed on defendant reported blood-alcohol levels of 0.19 and 0.18. At trial Rene Ramirez testified that he was driving defendant’s truck at the time of the accident. Defendant stipulated to his prior driving under the influence convictions and that on the day of the accident he was aware that his license had been suspended or revoked.
The trial court commenced the sentencing hearing by stating it had reviewed the probation report, which recommended the midterm for count 1, and noted that the probation officer erroneously added eight months for count 2, which would be stayed pursuant to Penal Code section 654. The trial court indicated that it intended to deny probation and impose either the midterm or the upper term, and that it would like argument from counsel. Following arguments by counsel, the trial court asked if there was anything else counsel wanted to bring to its attention before proceeding with sentencing, and both parties indicated there was not. The trial court then noted that it was defendant’s fifth driving under the influence of alcohol conviction, seventh conviction for driving on a suspended or revoked license, defendant was on summary probation, defendant continued to drink and drive, and defendant did not accept responsibility for his behavior and continued to maintain he was not driving. The trial court believed defendant persuaded his friends to testify falsely, but that other than the drinking problem, defendant appeared to be a productive member of society supporting his family with a regular job. The trial court then stated, “[i]t seems to me the only realistic thing for me as a sentencing judge is to impose the upper term to try to get his attention.” The court then stated it hoped defendant would participate in a drinking driver program at a particular penal institution mentioned by defense counsel off the record, and that it was going to make that recommendation.
The trial court set count 1 as the principal count and imposed the upper term of three years’ imprisonment. For count 2, a midterm sentence of two years was imposed, and stayed pursuant to Penal Code section 654. For count 3, a sentence of 180 days concurrent was imposed. The trial court stated its basis for the upper term was that (1) “defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in the commission” (Cal. Rules of Court, Rule 4.421(a)(4)), (2) defendant “suborned perjury” (Cal. Rules of Court, Rule 4.421(a)(6)), (3) “defendant was on [summary] probation... when the crime was committed” (Cal. Rules of Court, rule 4.421(b)(4)), and (4) “defendant’s prior performance on probation was unsatisfactory” (Cal. Rules of Court, rule 4.421(b)(5)).
The trial court and the probation officer’s report did not indicate consideration of the jury’s finding that defendant’s blood-alcohol content was in excess of 0.15 percent as a “special factor that may justify enhancing the penalties in sentencing.” (Veh. Code, § 23578.)
STANDARD OF REVIEW
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “ ‘In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
DISCUSSION
Defendant contends the trial court abused its discretion by impermissibly “reasoning backwards” and selecting the upper term without “statutorily channeling” its decision. We disagree.
A single aggravating circumstance is sufficient to make a defendant eligible for an upper term and for the trial court to impose an upper term sentence. (People v. Black (2007) 41 Cal.4th 799, 813, 815 (Black II).) “An aggravating circumstance is a fact that makes the offense ‘distinctively worse than the ordinary.’ ” (Id. at p. 817.) Once a defendant is eligible for the upper term, the trial court may engage in judicial fact finding to balance aggravating and mitigating circumstance “regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id.at p. 813.)
The trial court stated four valid aggravating factors it thought justified the upper term sentence. There being nothing to the contrary, the trial court is also deemed to have considered the aggravating nature of defendant’s high blood-alcohol content. (Veh. Code, § 23578; Cal. Rules of Court, rule 4.409 [unless the record affirmatively reflects otherwise relevant criteria are deemed to have been considered]; see also Cal. Rules of Court, rule 4.421(c).) Accordingly, the trial court could impose the upper term sentence.
We are not convinced by defendant’s argument that the trial court’s statement as it was about to announce its sentence that, “the only realistic thing [was] to impose the upper term to try to get his attention,” indicates that the trial court was reasoning backwards to justify a sentence not guided by statutory channels. By the time the court made this statement it had already indicated its tentative opinion, received arguments from counsel as to the selection of term, and provided counsel an opportunity to raise other issues.
Accordingly, we are satisfied that the trial court’s selection of the upper term was guided by the relevant rules and statutes, and was not an abuse of discretion.
COURT SECURITY FEE
Although not raised by the parties, we note that the trial court did not impose any court security fees.
Penal Code section 1465.8, subdivision (a)(1), provides in relevant part that, “a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense....” (Italics added.)
This language is mandatory. Penal Code “[s]ection 1465.8’s legislative history supports the conclusion the Legislature intended to impose the court security fee to all convictions after its operative date.” (People v. Alford (2007) 42 Cal.4th 749, 754, italics added.) This includes convictions in which the sentence was stayed pursuant to Penal Code section 654. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) Where no fee is imposed at all the judgment should be modified on appeal to include the fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)
Accordingly, the judgment should be modified to include the $20 court security fee for each of the three counts of which the defendant was convicted.
DISPOSITION
The judgment is modified to impose three $20 court security fees pursuant to Penal Code section 1465.8, subdivision (a)(1). The superior court clerk is directed to amend its minute order accordingly. In all other respects, the judgment is affirmed.
We concur: RICHLI, J., MILLER, J.